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The  Evolution  of  the 
Constitution  of  the  United  States 


OTHER   BOOKS    BY   MR.  FISHER 

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[JThe  Evolution  of  the 
Constitution  of  the  United  States 

Showing  that  it  is  a  Development  of  Progressive 

History  and  not  an  Isolated  Document 

Struck  Off  at  a  Given  Time  or 

an  Imitation  of  English 

or  Dutch  Forms  of 

Government 


By 

Sydney  George  Fisher 


Philadelphia* 

J.  B.  Lippincott  Company 

Mdcccxcvii 


Copyright,  1897, 

BY 

J.  B.  LippiNcoTT  Company. 


Preface 

Histories  of  the  Constitution  usually  describe  the 
labors  of  its  framers  in  the  Convention  of  1787  and  the 
contests  of  political  parties  over  the  adoption  of  the  in- 
strument by  the  requisite  number  of  States  in  the  fol- 
lowing year,  together  with  such  changes  or  developments 
as  have  taken  place  since  that  time.  The  works  which 
have  touched  on  its  sources  or  origin  have  treated  it  as 
invented  by  the  convention  which  framed  it,  or  have 
sought  in  England  or  other  European  countries  for 
forms  of  government  which  were  like  it  or  might  have 
suggested  its  various  provisions. 

Having  for  a  long  time  been  convinced  that  the  Con- 
stitution is  neither  an  invention  nor  an  imitation,  but 
almost  exclusively  a  native  product  of  slow  and  gradual 
growth,  I  have  in  this  book  undertaken  to  trace  back, 
through  previous  American  documents  in  colonial  times, 
every  material  clause  of  it.  These  documents  are  very 
numerous,  and  consist  of  twenty-nine  colonial  charters 
and  constitutions,  seventeen  Revolutionary  constitutions, 
and  twenty-three  plans  of  union, — in  all,  sixty-nine  dif- 
ferent forms  of  government  which  were  either  in  actual 
or  in  attempted  operation  in  America  during  a  period  of 
about  two  hundred  years,  from  1584  to  1787.  These 
constituted  the  school  of  thought,  the  experiments,  and 

3 


Preface 

the  training  which  in  the  end  produced  the  national 
government  under  which  we  now  live. 

The  time  of  two  hundred  years  was  sufficiently  long, 
and  the  sixty-nine  different  forms  of  government  were 
certainly  numerous  and  varied  enough,  to  bring  about 
the  final  result ;  and  they  account  for  the  final  result  in 
a  more  clear,  complete,  and  satisfactory  manner  than 
any  of  the  theories  of  sudden  inspiration  or  imitation 
of  England  or  Holland  that  have  been  broached. 

In  order  to  show  the  evolution  in  all  its  details,  I  have 
divided  two  of  the  chapters  into  sections.  Each  section 
traces  back  a  clause  of  the  Constitution  through  all  the 
previous  documents,  with  quotations  from  each  docu- 
ment showing  the  gradual  development,  the  experience 
that  was  acquired,  or  the  experiments  that  were  made. 
This  has  made  necessary  a  great  deal  of  small  print,  and 
sometimes  rather  long  quotations  from  the  old  docu- 
ments, which  were  very  verbose.  But  the  reader  has  it 
all  before  him,  and  can,  in  most  instances,  see  at  a  glance 
the  nature  of  the  development  without  any  laborious 
search  through  the  sixty-nine  documents.  I  have  also 
tried  to  lessen  his  efforts,  wherever  I  could,  by  com- 
ments and  summaries. 

Besides  this  detailed  analysis,  there  are  chapters  giving 
a  general  view  of  the  growth  and  discussing  the  sup- 
posed resemblances  to  European  forms  of  government 
The  last  chapter  deals  with  Mr.  Campbell's  theory  that 
part  of  the  Constitution  and  many  other  American 
institutions  were  derived  from  Holland. 

Philadelphia,  February,  1897. 


Contents 


CHAPTER    I. 

PACK 

Confused  Ideas  as  to  the  Origin  of  the  Constitution  .  .     ii 


CHAPTER   II. 
The  Colonial  Charters  and  Constitutions 26 

CHAPTER    III. 
The  Constitutions  of  1776 70 

CHAPTER   IV. 
The  Engush  Sources  of  the  Constitution 90 

CHAPTER    V. 

The  Evolution  from  the  Colonial  Charters   Shown  in 

Detail 105 

CHAPTER    VI. 
The  EvoLUnoN  of  Federalism 215 

CHAPTER    VII. 

The  Evolution  of  Federalism  Shown  in  Detail 267 

5 


Contents 

CHAPTER    VIII. 

PACK 

Clauses  of  the  Constitution  which  were  of  Short  De- 

velx)pment 3io 

CHAPTER    IX. 
Dutch  Sources 3*5 

APPENDIX. 
Constitution  of  the  United  States 375 


Documents  in  the   Evolution  from  the 
Colonial  Charters 


1.  Sir  Walter  Raleigh's  Charter,  1584. 

2.  Virginia  Charter,  1606. 

3.  Virginia  Charter,  1609. 

4.  Virginia  Charter,  1611-12. 

5.  New  England  Charter,  1620. 

6.  Grant  of  New  Hampshire,  1 629. 

7.  Massachusetts  Charter,  1629. 

8.  Maryland  Charter,  1632. 

9.  Grant  of  New  Hampshire,  1635. 

10.  Fundamental  Orders  of  Connecticut,  1 638. 

11.  Grant  of  Maine,  1639. 

12.  Connecticut  Charter,  1662. 

13.  Charter  of  CaroHna,  1663. 

14.  Rhode  Island  Charter,  1663. 

15.  Grant  to  the  Duke  of  York,  1664. 

16.  Concessions  of  East  Jersey,  1665. 

17.  Charter  of  Carolina,  1665. 

18.  Locke's  Carolina  Constitution,  1669. 

19.  Grant  to  the  Duke  of  York,  1674. 

20.  Concessions  of  West  Jersey,  1677. 

21.  Commission  for  New  Hampshire,  1680. 

22.  Pennsylvania  Charter,  1681. 

23.  Pennsylvania  Frame  of  April  2,  1683. 

24.  Pennsylvania  Frame,  1683. 

25.  Massachusetts  Charter,  1691. 

26.  Pennsylvania  Frame,  1696. 

27.  Pennsylvania  Charter  of  Privileges,  1701. 

28.  Explanatory  Massachusetts  Charter,  1726. 

29.  Georgia  Charter,  1732. 

7 


Documents  in  the  Evolution 

30.  New  Hampshire  Constitution,  begun  December  21,  1775  ; 
finished  January  5,  1776. 

31.  South  Carolina  Constitution,  adopted  March  26,  1776. 

32.  Virginia  Constitution,  begun  May  6,  1776;  adopted  June 
29,  1776. 

33.  New  Jersey  Constitution,  begun  May  26,   1776;  adopted 
July  3,  1776. 

34.  Delaware  Constitution,  begun  August  27,  1776;  adopted 
September  21,  1776. 

35.  Pennsylvania  Constitution,  begun  July  15,  1776;  adopted 
September  28,  1776. 

36.  Maryland  Constitution,  begun  August  14,    1776;  finished 
November  11,  1776. 

37.  North  CaroUna  Constitution,  begun  November  12,  1776; 
finished  December  18,  1776. 

38.  Georgia  Constitution,  begun  October  i,  1776  ;  finished  Feb- 
ruary 5,  1777. 

39.  New  York  Constitution,  begun  July  10,    1776;   finished 
April  20,  1777. 

40.  Vermont  Constitution,  begun  July  2,  1777  ;  finished  July 

8,  1777. 

41.  Rejected  Massachusetts  Constitution,  1778. 

42.  South  Carolina  Constitution,  passed  as  an  act  of  assembly 
March  19,  1778  ;  went  into  effect  November,  1778. 

43.  Rejected  New  Hampshire  Constitution,  1778. 

44.  Massachusetts  Constitution,  begun  September  i,  1779  ;  fin- 
ished March  2,  1780. 

45.  New  Hampshire  Constitution,  begun  June   12,  1781 ;  fin- 
ished October  31,  1783  ;  adopted  June  2,  1784. 

46.  Vermont  Constitution,  1786. 
The  Constitution,  1787. 


Documents  in  the  Evolution  of  Federalism 


1.  New  England  Confederation  of  1643. 

2.  Commission  of  Council  for  Foreign  Plantations,  1660. 

3.  William  Penn's  Plan  of  Union,  1696. 

4.  Report  of  Board  of  Trade  on  union  of  New  York  with  other 
colonies,  1696. 

5.  D'Avenant's  Plan  of  1698. 

6.  A  Virginian's  Plan,  in  "  An  Essay  on  the  Government  of 
the  English  Plantations  on  the  Continent  of  America,"  1701. 

7.  Livingston's  Plan,  1701. 

8.  Earl  of  Stair's  Proposals,  1721. 

9.  Plan  of  the  Lords  of  Trade,  1721. 

10.  Daniel  Coxe's  Plan,  in   "A  Description  of  the  English 
Province  of  Carolina,"  1722. 

11.  Kennedy's  Plan,  1751. 

12.  Franklin's  Plan,  1754. 

13.  Richard  Peters' s  Plan,  1754. 

14.  Hutchinson's  Plan,  1754. 

15.  Plan  of  the  Lords  of  Trade,  1754. 

16.  Dr.  Samuel  Johnson's  Plan,  1760. 

17.  Galloway's  Plan,  1774. 

18.  Franklin's  Articles  of  Confederation,  1775. 

19.  The  Articles  of  Confederation,  1778. 

20.  Drayton's  Articles  of  Confederation,  1778. 

21.  Webster's  Sketches  of  American  Policy,  1785. 

22.  Randolph's  Plan,  1787. 

23.  Pinckney's  Plan,  1787. 
The  Constitution,  1787. 


The  Evolution  of  the 
Constitution  of  the  United  States 


CHAPTER    I. 


CONFUSED    IDEAS   AS   TO   THE   ORIGIN    OF  THE   CONSTITU- 
TION. 

To  set  men  thinking  and  incite  them  to  conduct  in- 
vestigations of  their  own  is  often  more  important  than 
to  persuade  and  convince  them.  No  words  of  Mr.  Glad- 
stone have  been  so  much  considered  by  the  American 
people,  and  none  have  aroused  them  to  so  much  re- 
search, as  those  in  which  he  said  that  "  as  the  British 
Constitution  is  the  most  subtle  organism  which  has  pro- 
ceeded from  progressive  history,  so  the  American  Con- 
stitution is  the  most  wonderful  work  ever  struck  off  at 
a  given  time  by  the  brain  and  purpose  of  man." 

At  first  glance  there  seems  to  be  a  compliment  in  the 
striking,  clear-cut  language  of  the  great  English  states- 
man, and  if  the  phrase  had  been  applied  to  some  na- 
tions— the  French,  for  example — they  would  probably 
continue  to  think  it  complimentary.  But  along  with 
the  first  impression  of  a  compliment  the  Anglo-Saxon 
instinct  of  Americans  received  an  impression  which  it 


Evolution  of  the  Constitution 

resented.  Our  people  were  at  first  pleased,  but  the 
next  moment  they  were  irritated  at  the  thought  that 
their  government  had  been  made  off-hand. 

They  have  the  reputation  of  being  smart  and  quick, 
— smarter  and  quicker  than  their  cousins  the  British, — 
and  they  rather  like  to  be  told  so.  But  when  you  tell 
them  that  they  were  smart  and  quick  in  creating  a 
political  institution  you  touch  another  and  far  deeper 
feeling.  You  cut  them  off  from  their  past ;  and  ven- 
eration for  their  past,  even  their  far-distant  past,  is  a 
passion  which,  though  often  secretly  nourished,  fills  a 
large  part  of  their  lives.  And  so  it  has  come  to  pass 
that,  of  all  the  sentences  the  Liberal  leader  of  England 
ever  wrote,  there  is  none  which  Americans  have  been 
so  anxious  to  refute  as  the  one  in  which  he  doubtless 
thought  he  was  saying  what  would  be  most  surely 
acceptable  to  them. 

Soon  after  his  assertion  became  generally  known,  dis- 
sent from  it  began  to  appear,  here  and  there,  in  ad- 
dresses and  newspaper  and  magazine  articles,  and  now 
there  are  whole  books  on  the  subject,  all  laboring  to 
show  that  the  Constitution  was  not  "  struck  off  at  a  given 
time,"  but  that  its  source  and  lines  of  development 
stretch  far  back  into  the  past 

Unfortunately,  these  learned  gentlemen  who  trace  the 
sources  of  the  Constitution  do  not  agree  with  one  an- 
other. In  fact,  there  is  a  most  extraordinary  and  even 
ridiculous  contradiction  in  the  sources  they  assign.  Mr. 
Bryce,  in  his  great  work,  "The  American  Common- 
wealth," finds  the  sources  in  the  British  government 
of  King,  Lords,  and  Commons,  and  he  is  followed  by 


Confused  Ideas  as  to  its  Origin 

Taylor,  Stevens,  and  others,  with  variations  of  the  same 
general  opinion  ;  while  Foster,  in  his  recent  work  on 
the  Constitution,  seems  somewhat  inclined  to  go  back 
to  Mr.  Gladstone's  view.  But  Mr.  Campbell,  in  his 
"Puritan  in  Holland,  England,  and  America,"  denies 
all  English  sources,  and  gives  our  institutions  an  origin 
in  Holland. 

When  we  look  further  into  the  general  subject  of  the 
sources  of  American  institutions,  municipal  as  well  as 
constitutional,  we  find  the  same  tendency  to  assign 
queer  foreign  origins.  The  New  England  township  sys- 
tem, according  to  some  learned  people,  is  of  German 
origin.  The  New  England  town,  they  say,  especially 
in  colonial  times,  with  its  common  land  and  self-govern- 
ment, almost  exactly  resembled  the  old  Teutonic  village. 

Between  the  occurrence  of  these  two  resemblances 
centuries  of  time  elapsed  when  such  towns  were  un- 
known to  the  race  and  forgotten  by  it  But  a  few 
centuries  are  a  mere  trifle  to  a  man  who  has  detected 
one  of  these  mystical  resemblances.  By  a  little  skilful 
language,  a  "doubtless"  or  a  "perhaps"  or  an  ingenious 
hypothesis,  he  will  easily  jump  aeons  of  time  and  oceans 
of  space.  Only  let  him  find  in  Mexico  or  Yucatan  a 
building  or  some  pottery  with  an  outline  like  some- 
thing in  Persia,  and  five  thousand  years  and  three  thou- 
sand miles  of  ocean  are  nothing.  He  will  put  volcanoes 
under  the  water  and  raise  islands,  and  then  an  ancient 
continent,  until  he  has  made  history  to  suit  him. 

Every  generation  seems  to  have  its  crop  of  these  ex- 
traordinary suggestions  and  hypotheses,  which  their  ad- 
vocates soon  extend  beyond  their  proper  sphere  of  mere 

13 


Evolution  of  the  Constitution 

suggestions  and  insist  that  they  are  certainties.  For 
many  years  after  the  Revolution  it  was  supposed  that 
some  of  the  American  Indians  were  descended  from  a 
lost  tribe  of  Welshmen  who  came  to  this  continent 
under  a  leader  called  Madoc.  Remains  of  burial  mounds 
and  ancient  customs  were  found,  which  the  learned 
insisted  were  very  like  remains  in  Wales,  and  they 
heaped  up  the  suggestions  until  they  had  what  they 
thought  was  proof  Fortunately,  the  craze  had  passed 
away  when  the  tribe  of  Modoc  Indians  became  promi- 
nent soon  after  the  Civil  War,  or  we  might  have  had 
it  continued  indefinitely. 

During  the  same  period  many  people  believed  that  all 
our  Indians  were  descendants  of  the  lost  tribes  of  Israel. 
They  found  many  resemblances,  and  the  one  which  im- 
pressed them  most  was  that  some  of  the  Indians  had 
cities  of  refuge  like  the  Israelites.  Cooper  satirized 
these  people  in  his  novel  "  Oak  Openings,"  in  which 
there  is  a  character  who  proves  the  connection  by  the 
passage  in  the  Psalms,  "  God  shall  wound  the  head  of 
his  enemies,  and  the  hairy  scalp  of  such  a  one  as  goeth 
on  still  in  his  wickedness."  But  these  ancient  fancies 
are  hardly  any  worse  than  Mr,  Campbell's  notion  that 
our  American  institutions,  including  the  New  England 
town  system,  are  derived  from  Holland. 

I  admit  that  there  is  great  fascination  in  these  specu- 
lations, and  I  admit  that  there  may  possibly  be  some- 
thing more  than  fascination  in  the  theory  of  the  recur- 
rence of  ideas  and  institutions  at  long  intervals  in  the 
history  of  a  race.  That  passage  in  Du  Chaillu's  "  Viking 
Age"  in  which  he  asserts  that  the  Norsemen,  the  ances- 

14 


Confused  Ideas  as  to  its  Origin 

tors  of  the  English  and  Americans,  had  a  federal  govern- 
ment hke  that  of  the  United  States,  is  certainly  most 
interesting  and  impressive  : 

"  Every  Herad  was  independent  of  the  Fylki  in  its  local  afifairs, 
and  every  Fylki  was  independent  one  from  the  other,  each  hav- 
ing self-government.  When  the  affairs  of  the  country  required 
the  presence  of  all  the  people,  then  the  boendr  of  the  Herads  and 
Fylki  met  together  at  a  general  Thing,  called  AUsherjar  Thing 
(Thing  of  all  the  hosts),  and  all  had  to  abide  by  the  decision 
taken  .  .  .  The  closest  approach  to  this  ancient  form  of  govern- 
ment is  that  of  the  United  States." 

But  before  we  resort  to  these  far-fetched  and  roman- 
tic speculations  we  should  exhaust  the  nearer  and  more 
accurate  method,  and  this  is  what  the  writers  on  the 
sources  of  the  American  Constitution  have  failed  to  do. 
Taking  the  Constitution  as  it  was  framed  in  1787,  they 
immediately  look  for  something  in  Europe  from  which 
they  assume  it  must  have  been  copied,  instead  of  tracing 
its  origin  backward  from  itself  through  the  two  hundred 
years  of  the  colonial  period. 

If  I  find  on  American  soil  the  footprints  of  a  man,  and 
wish  to  discover  whence  he  came,  I  surely  ought  not  to 
assume  at  once  that  he  is  a  foreigner  and  take  the  next 
steamer  for  England  or  Holland  to  see  if  I  can  find  foot- 
prints over  there  that  are  like  his.  It  would  be  better, 
it  seems  to  me,  to  start  backward  on  his  trail  from  the 
very  spot  where  I  find  it ;  for  it  may  be  that  he  is  a  native, 
and  I  may  be  able  to  follow  his  tracks  for  hundreds  of 
miles  in  this  country,  and,  when  I  come  to  his  house, 
find  that  he  and  his  ancestors  have  been  living  there  for 

15 


Evolution  of  the  Constitution 

many  generations.  In  any  event,  I  should  follow  back 
his  track  until  it  ends  on  the  sea-shore,  and  after  that 
search  for  him  in  other  countries. 

This  is,  I  believe,  the  only  sound,  legitimate,  and  sci- 
entific way  to  trace  the  origin  of  a  public  document  or 
institution.  We  must  go  back,  step  by  step,  in  the 
direct  line  of  ancestry,  and  keep  in  that  line  until  it 
ends.  There  must  be  no  jumping,  no  wanderings  aside, 
and  no  searching  for  vague  resemblances  in  the  world 
at  large. 

If  the  writers  on  the  sources  of  the  Constitution  had 
followed  this  plan  there  would,  I  think,  be  less  dis- 
agreement among  them,  or  at  least  not  the  extraordi- 
nary contradiction  which  we  now  find.  The  contradic- 
tion follows  naturally  enough  from  their  method  ;  for 
as  soon  as  they  leave  the  direct  line  of  growth  and  be- 
gin to  search  for  resemblances  everywhere  they  will  find 
plenty  of  them.  Human"  nature  is  in  a  general  way 
much  the  same  all  the  world  over,  and  human  beings 
have  been  laboring  for  many  centuries  and  encounter- 
ing the  same  problems  and  conditions  in  one  country 
as  in  another.  Within  recent  years  vast  quantities  of 
historical  details  of  almost  every  country  have  been 
published,  and  a  man  who  has  a  fancy  for  some  par- 
ticular nation  can  easily  frame  a  specious  argument  to 
show  how  other  nations  have  apparently  copied  from  it 

There  have  been  instances  of  direct  and  literal  imita- 
tion ;  but  they  are  comparatively  rare,  and  very  rare 
among  the  Anglo-Saxon  race.  The  instances  where 
one  nation  has  been  influenced  in  a  general  way  by 
what  it  knows  of  the  workings  of  institutions  in  another 

i6 


Confused  Ideas  as  to  its  Origin 

nation  are  more  numerous  ;  but  in  these  instances  there 
is  not  what  would  properly  be  called  an  imitation  or  a 
taking.  Very  often  the  institutions  of  the  foreign  coun- 
try are  considered  as  an  example  of  what  should  not  be 
done.  Some  of  the  provisions  of  our  own  Constitution 
were  influenced  in  this  way  by  what  were  supposed  to 
be  evils  in  the  English  system. 

In  other  cases  a  nation,  having  to  solve  a  problem 
which  has  troubled  it  for  many  years,  works  out  in  time 
what  seems  to  be  a  solution,  and  is  the  more  convinced 
that  it  will  prove  successful  because  something  like  it 
has  been  adopted  by  another  country.  The  foreign  in- 
stitutions are  used  in  these  instances  argumentatively, 
and  are  not  imitated  in  the  true  sense  of  the  word,  be- 
cause the  nation  has  an  experience  of  its  own  with  which 
it  is  working,  and  it  uses  the  foreign  institution  merely 
to  reinforce  its  own  ideas. 

For  example,  in  colonial  times  our  people  were  very 
familiar  with  the  veto  power  in  the  colonial  governors, 
and  also  in  the  king.  The  governors  could,  in  many 
instances,  veto  the  laws  of  the  assemblies  immediately 
on  their  passage,  and  the  same  laws  had  to  be  submitted 
to  the  king,  who  had  a  certain  number  of  years,  usually 
about  five,  to  examine  them,  and  at  the  end  of  that 
time,  if  he  disapproved,  he  could  annul  them.  These 
vetoes  of  governors  and  king  were  absolute.  They  killed 
the  laws,  and  there  was  no  arrangement  for  passing  the 
laws  over  their  veto  by  a  two-thirds  vote.  But  the  peo- 
ple suffered  so  much  inconvenience  from  these  absolute 
vetoes  that  when  they  came  to  make  their  own  State 
constitutions  in  the  Revolution  they  usually  gave  their 

2  17 


Evolution  of  the  Constitution 

governors  no  veto  power  at  all,  until  at  last  New  York 
hit  upon  the  plan  of  a  modified  veto,  which  could  be 
overcome  by  a  two-thirds  vote  of  the  legislature ;  and 
when  the  National  Constitution  was  framed  this  same 
modified  veto  was  given  to  the  President  It  is  cer- 
tainly not  an  imitation  of  the  veto  power  of  the  English 
king,  for  it  was  developed  solely  out  of  American  expe- 
rience of  the  evils  of  the  king's  absolute  veto. 

The  United  States  Senate  is,  as  we  shall  see,  a  gradual 
development  from  the  Governor's  Council  of  colonial 
times,  which  was  first  a  mere  advisory  council  of  the 
governor,  afterwards  a  part  of  the  legislature  sitting  with 
the  assembly,  then  a  second  house  of  legislature  sitting 
apart  from  the  assembly,  as  an  upper  house  ;  sometimes 
appointed  by  the  governor,  sometimes  elected  by  the 
people,  until  it  gradually  became  an  elective  body,  with 
the  idea  that  its  members  represented  certain  districts 
of  land,  usually  the  counties.  It  had  developed  thus  far 
when  the  National  Constitution  was  framed,  and  it  was 
adopted  in  that  instrument  so  as  to  equalize  the  States 
and  prevent  the  larger  ones  from  oppressing  the  smaller 
ones.  This  was  accomplished  by  giving  each  State  two 
Senators,  so  that  large  and  small  were  alike.  The  lan- 
guage in  the  Constitution  describing  the  functions  of 
the  Senate  was  framed  principally  by  John  Dickinson, 
who  at  that  time  represented  Delaware, — one  of  the 
smaller  States  of  the  Union, — which  had  suffered  in 
colonial  times  from  too  much  control  by  Pennsylvania. 

The  Senate  as  it  exists  to-day  is  therefore  primarily 
the  result  of  our  own  experience.  But  some  writers 
insist  on  seeing  in  it  an  imitation  of  the  British  House 

i8 


Confused  Ideas  as  to  its  Origin 

of  Lords,  and  Mr.  Campbell,  finding  that  the  States- 
General  of  the  Netherland  Republic  was  composed  of 
representatives  of  states  and  that  each  state  had  only 
one  vote,  and  that  the  framers  of  our  Constitution  were 
familiar  with  Netherland  institutions,  jumps  to  the  con- 
clusion that  the  United  States  Senate  was  a  Dutch  im- 
portation. 

If  it  really  had  been  an  imitation  from  the  Dutch, 
there  would  be  some  evidence  of  it  in  the  debates  of  the 
Constitutional  Convention.  The  Dutch  resemblance 
would  have  been  urged  by  some  as  a  reason  in  its  favor 
and  by  others  as  a  reason  against  it  Afterwards,  when 
the  Constitution  Wcis  before  the  people  for  adoption  and 
closely  discussed  and  criticised  in  numerous  pamphlets 
and  newspapers,  the  Dutch  imitation,  if  there  had  been 
one,  would  have  been  surely  referred  to  either  by  friends 
or  by  enemies.  But  Mr.  Campbell  cites  no  evidence  of 
this  sort,  and,  as  a  matter  of  fact,  there  is  none. 

The  sources  of  our  Constitution  are  to  be  found  in  the 
colonial  period  of  about  two  hundred  years  which  pre- 
ceded the  framing  of  the  Constitution,  in  1787.  Lit- 
erally, the  time  began  with  Sir  Walter  Raleigh's  charter 
of  1 584,  which  makes  a  period  of  two  hundred  and  three 
years.  Those  two  hundred  years  were  ample  for  forma- 
tion and  growth,  and  they  cannot  be  safely  skipped. 
But  writers  have  thus  far  dismissed  them,  or  summarized 
them  in  a  sentence  or  two,  and  rushed  off  to  Europe  to 
look  for  foreign  sources. 

It  must  be  confessed  that  the  supposed  foreign  sources 
make  easier  and  more  interesting  work.  The  material 
is  cill  at  hand,  has  been  well  analyzed  and  arranged  by 

»9 


Evolution  of  the  Constitution 

eminent  scholars,  and  all  educated  people  are  more  or 
less  familiar  with  it.  But  our  colonial  history  is  an  un- 
known land  of  scattered  material, — long,  wordy  docu- 
ments difficult  to  read, — and  has  been  so  neglected,  and 
the  little  research  that  has  been  made  in  it  so  stupidly 
done,  that  most  people  instinctively  avoid  it  There  is 
supposed  to  be  little  or  nothing  in  it,  and  a  habit  has 
grown  up  of  believing  that  all  of  value  or  interest  in  our 
history  began  with  the  Revolution. 

But  that  despised  colonial  period  contains  all  our  be- 
ginnings ;  and  not  only  our  beginnings,  but  a  large  part 
of  our  maturity ;  for  at  the  time  the  Constitution  was 
framed,  in  1787,  our  people  had  had  a  vast  experience  in 
constitution-making, — greater  and  more  varied,  I  am 
inclined  to  think,  than  any  other  people  of  the  world. 
They  had  been  living  under  charters  from  the  Crown, — 
constitutions  of  their  own  making, — and  some  of  them 
without  either  charters  or  constitutions,  for  nearly  two 
centuries,  and  during  the  Revolution  they  had  nearly  all 
made  new  constitutions,  under  which  they  had  been 
living  for  ten  or  more  years. 

In  fact,  our  experience  of  constitution-making  and 
constitution-working  previous  to  1787  covered  a  much 
longer  period  than  our  experience  since  that  year.  Our 
modern  experience  has  dealt  with  larger  populations  and 
vaster  problems,  but  it  covers  a  period  of  less  than  one 
hundred  and  ten  years,  while  the  previous  experience 
was  of  two  hundred  years,  and  was  more  varied,  experi- 
mental, and  elementary. 

When  Massachusetts  sent  her  delegates,  in  the  year 
1787,  to  frame  the  National  Constitution,  she  had  had 


Confused  Ideas  as  to  its  Origin 

over  a  hundred  and  fifty  years'  experience  of  constitu- 
tion-tinkering. During  that  time  she  had  Kved  under 
two  charters,  a  constitution,  and  an  interregnum,  when 
she  had  neither  charter  nor  constitution  and  was  under 
the  direct  rule  of  the  Crown.  Her  first  charter  was  so 
Hberal  that  she  had  enjoyed  for  fifty  years  what  was  in 
effect  independence.  She  elected  her  own  governors, 
coined  her  own  money,  and  was  not  obliged  to  send  her 
laws  to  England  for  approval.  Her  second  charter  was 
just  the  reverse,  and  gave  her  a  taste  of  something  very 
near  to  despotism.  During  the  Revolution  she  made  for 
herself  a  constitution  which  was  rejected  by  her  people, 
but  before  the  Revolution  closed  she  made  another,  which 
was  accepted.  She  had  had  a  double  experience  of 
constitution-making  during  the  seven  years  of  the  Revo- 
lution, and,  taken  all  in  all,  a  very  severe  and  long  prep- 
aration for  her  part  in  the  national  document  of  1787. 

Virginia  had  had  very  much  the  same  experience  and 
training,  and  for  a  longer  period  of  time.  Pennsylvania 
had  been  living  for  more  than  ten  years  under  a  consti- 
tution which  she  had  made  for  herself  in  i  yjd, — a  most 
bungling  instrument,  with  which  the  majority  of  her 
people  were  heartily  disgusted.  Previous  to  that  she 
had  been  living  under  an  excellent  constitution  of  her 
own  making  for  seventy-five  years,  before  which  she 
had  lived  under  several  constitutions,  or  frames,  as  they 
were  then  usually  called,  none  of  them  successful. 

Other  colonies  had  had  greater  or  less  experience,  and 
it  was  certainly  all  very  varied.  When  we  consider  that 
the  delegates  came  to  the  Convention  of  1787  with  all 
this  experience  in  their  minds,  each  with  the  experi- 


Evolution  of  the  Constitution 

ence  of  his  own  colony  and  what  he  had  heard  of  the 
experience  of  the  other  colonies,  we  begin  to  feel  the 
truth  of  my  main  proposition, — that  it  is  to  the  colonial 
period  we  must  look  for  the  immediate  and  most  evi- 
dent sources  of  the  National  Constitution,  and  that  the 
National  Constitution  when  framed,  in  1 787,  instead  of 
being  a  contrast  to  the  British  Constitution  and  "  struck 
off  at  a  given  time,"  was,  even  when  judged  as  a  purely 
American  production,  more  than  a  hundred  years  old. 

The  colonial  sources  of  the  Constitution  are,  first  of 
all,  the  charters  of  government,  which  were  framed  not 
by  the  colonists  themselves,  but  for  them  by  the  officers 
and  ministers  of  the  British  Crown.  It  is  easy  enough 
to  give  the  details  of  these.  We  have  them  all  in  Poore's 
admirable  collection.  They  are  very  trying  to  read, 
because,  like  other  documents  of  that  time,  each  of 
them,  though  many  pages  long,  is  supposed  to  be  one 
sentence  from  beginning  to  end.  The  clerks  who 
draughted  them  were  paid  by  the  line,  and  their  in- 
geniously involved  language  almost  compels  one  to 
believe  the  assertion  in  Kid's  "Social  Evolution"  that 
the  modern  brain  is  inferior  to  the  ancient  But  their 
immense  verbosity  conceals  usually  only  a  few  very 
simple  arrangements  of  government  They  were  the 
foundation  and  beginning  of  our  constitutional  ex- 
perience. 

The  second  source  of  our  experience  is  comprised  in 
the  constitutions,  or  frames  as  they  were  often  called, 
which  were  made  by  the  colonists  themselves,  with  little 
or  no  dictation  from  the  Crown.  Some  of  these,  as  in 
Pennsylvania,  rested  on  an  authority  given  by  the  Crown 


Confused  Ideas  as  to  its  Origin 

to  the  people  to  make  such  a  government  as  they  could 
agree  upon  with  their  feudal  proprietor.  The  first  con- 
stitution of  Connecticut,  however,  was  made  by  the 
people  of  their  own  accord,  without  any  outside  influ- 
ence. These  native  constitutions  might  naturally  be 
expected  to  differ  very  radically  from  the  royal  char- 
ters. But  in  matters  of  government  and  political  forms 
there  was  very  little  difference,  and  both  charters  and 
constitutions  seem  to  have  been  influenced  by  the  same 
process  of  evolution. 

The  third  class  of  sources  is  the  actual  working  and 
experience  under  these  charters  and  constitutions,  and 
under  the  governments  which  sprang  up  or  were  estab- 
lished by  the  Crown  when  a  colony  was  without  either 
charter  or  constitution.  In  this  class  we  find  the  same 
evolution  at  work,  and  the  practical  experience  under 
these  governments  reinforced  the  ideas  developed  by 
the  written  documents. 

The  fourth  class  of  sources  comprises  what  I  shall  call 
the  Revolutionary  constitutions,  or  constitutions  of  the 
year  1776.  I  call  them  constitutions  of  1776  because 
most  of  them  were  made  in  that  year.  They  were  all 
the  result  of  a  resolution  of  the  Continental  Congress 
passed  in  1775,  calling  on  each  of  the  commonwealths, 
that  were  then  still  colonies,  to  abolish  their  charters, 
constitutions,  or  whatever  sort  of  colonial  government 
they  had,  and  adopt  new  constitutions  suited  to  the 
movement  for  independence. 

It  was  a  resolution  which  at  the  time  it  was  passed 
was  considered  of  great  importance.  The  people  were 
wavering  and  hesitating  to  join  the  movement  for  inde- 

23 


Evolution  of  the  Constitution 

pendence  because  they  retained  a  lingering  sentiment 
for  the  old  order  of  things,  the  order  under  which  they 
had  lived  and  prospered  for  more  than  a  hundred 
years,  and  which  had  given  them  pretty  much  all  the 
experience  they  possessed  of  civil  rights  and  govern- 
ment This  sentiment  was  generally  believed  to  be 
wrapped  up  in  the  old  charters  and  colonial  constitu- 
tions, and  if  they  could  be  broken  the  sentiment,  it  was 
said,  would  lose  more  than  half  its  strength. 

It  was  certainly  in  many  respects  a  wise  resolution 
from  the  point  of  view  of  those  who  passed  it  It  has 
not  been  much  noticed  by  writers  on  the  sources  of  the 
Constitution,  but  it  was  the  indirect  source  of  more  con- 
stitutional experience  to  the  American  people  than  any- 
thing else  that  can  be  named.  It  was  obeyed  by  all 
the  colonies  except  Connecticut  and  Rhode  Island, 
whose  charter  governments  were  so  liberal  and  gave  so 
much  essential  independence  that  they  were  already 
substantially  American.  Connecticut  continued  to  live 
under  her  old  royal  charter  down  to  the  year  1818,  and 
Rhode  Island  down  to  the  year  1842. 

Under  the  inspiration  of  this  resolution  the  majority 
of  the  commonwealths  that  eleven  years  afterward  made 
the  National  Constitution  rushed  into  an  active  experi- 
ence in  constitution-making  in  the  years  1776  and  1777  ; 
and  they  had  an  opportunity  to  test  the  constitutions 
thus  made  for  ten  years  before  they  were  called  upon 
to  frame  the  national  document 

Of  the  seventeen  constitutions  of  1776,  eight  were 
put  in  operation  in  the  year  1776,  three  in  1777,  and 
one  in  1778.     Massachusetts  framed  a  constitution  in 

24 


Confused  Ideas  as  to  its  Origin 

1778  which  was  rejected  by  her  people,  and  another  in 

1779  which  was  adopted  March  2,  1780.  New  Hamp- 
shire, which  had  adopted  a  constitution  in  1776,  framed 
another  in  1 779  which  was  rejected,  and  another  in  1 784 
which  was  adopted.  But  even  in  the  instances  of  Mas- 
sachusetts and  New  Hampshire,  where  the  experience 
was  prolonged  and  difficult,  the  constitutions  had  been 
in  actual  working  for  several  years  before  the  assembling 
of  the  National  Convention  of  1787.  Vermont  adopted 
a  new  constitution  in  1786,  the  year  before  the  assem- 
bling of  the  Convention,  but  it  differed  very  slighdy 
from  her  constitution  of  1777,  which  was  a  copy  of  the 
Pennsylvania  constitution  of  1776. 

When  we  read  all  these  constitutions  of  1776  to- 
gether, in  the  light  of  our  present  knowledge,  we  see  at 
once  that  they  bear  a  most  curious  but  immature  re- 
semblance to  the  National  Constitution.  They  are  full 
of  blunders,  untried  experiments,  well-tried  experiments, 
individual  suggestions  good  and  bad,  old  colonial  tra- 
ditions and  experience,  strange  remnants  of  aristocratic 
feeling,  and  all  the  natural  characteristics  of  apprentices 
free  for  the  first  time  to  slash  about  at  will  with  their 
master's  tools  and  materials.  And  the  most  striking 
part  of  all  is  that  when  we  read  them  in  chronological 
order  we  find  them  developing  step  by  step,  and  that 
those  which  took  longest  in  making,  like  the  constitution 
of  Massachusetts,  most  nearly  resemble  the  National 
Constitution. 


«5 


CHAPTER    II. 

THE   COLONIAL   CHARTERS   AND    CONSTITUTIONS. 
(1584  to  1732.) 

These  old  documents,  when  carefully  studied  in  chron- 
ological order,  show  a  steady  development  towards  the 
forms  of  the  National  Constitution  of  1787,  The  ear- 
liest of  them  was  Sir  Walter  Raleigh's  charter  of  1584. 
This  charter  was  the  first  step  in  English  colonization  in 
America,  and,  in  a  certain  sense,  the  first  American 
written  constitution.  It  authorizes  Sir  Walter  to  dis- 
cover and  settle  heathen  lands,  without  mentioning  any 
particular  continent  or  part  of  the  world.  But  it  was 
intended  to  encourage  colonization  in  North  America, 
and  the  five  unsuccessful  voyages  made  under  it  were 
all  directed  to  that  continent 

Sir  Walter  and  his  heirs  and  assigns  are  to  be  the 
absolute  owners  of  any  lands  they  settle.  He  is  to  have 
"  full  power  and  authority  to  correct,  punish,  pardon, 
govern,  and  rule"  in  every  way  for  six  years  the  people 
who  shall  come  to  him  or  who  shall  live  within  two  hun- 
dred leagues  of  him.  His  absolute  power  during  those 
six  years  is  given  in  the  fullest  manner,  and  the  only 
exceptions  to  it  are  that  his  laws  must  conform  "  as  near 
as  conveniently  may  be"  to  the  laws  of  England,  and 
if  he  robs  any  British  subjects  or  the  subjects  of  any 
prince  at  peace  with  Great  Britain  he  must  make  resti- 

26 


Colonial  Charters  and  Constitutions 

tution,  under  penalty  of  being  declared  out  of  the  alle- 
giance and  protection  of  his  country  and  "  free  for  all 
princes  and  others  to  pursue  with  hostility." 

The  first  notion,  therefore,  which  the  English  had  of 
colonization  and  government  in  America  was  to  give  the 
absolute  ownership  of  the  land  to  a  single  individual, 
and  let  him  govern  it  with  absolute  power  for  six  years. 
The  object  was  evidently  by  high  reward  to  encourage 
some  daring  spirit  to  attempt  the  enterprise,  and  if  he 
should  be  successful  for  six  years  a  more  orderly  govern- 
ment of  the  colony  could  be  provided. 

The  more  orderly  government  appears  in  the  next 
document,  known  as  the  first  charter  of  Virginia,  granted 
in  the  year  1606.  Sir  Walter's  efforts  under  his  charter 
of  1 5  84  had  been  wholly  unsuccessful,  and  no  settiement 
was  established.  But  he  gave  the  name  Virginia  to 
the  whole  country  between  the  present  States  of  Maine 
and  Georgia,  so  that  the  next  charter  could  at  least  be 
less  vague  than  his  had  been.  We  find  it,  indeed,  de- 
scribing with  considerable  exactness  the  country  it 
granted  as  extending  from  latitude  34°  N.  to  latitude 
45°  N.  This  huge  tract  was  to  be  divided  between  two 
colonies,  the  first  of  which  was  to  settle  somewhere  be- 
tween Georgia  and  Pennsylvania  and  the  second  between 
Pennsylvania  and  Maine. 

The  absolutism  given  to  a  single  proprietor  in  Sir 
Walter's  charter  is  abandoned  in  this  charter,  and  in 
place  of  it  the  same  absolute  power  is  divided  between 
the  king  and  a  council.  The  government  is  to  consist 
of  a  council  of  thirteen  persons  in  London  and  a  coun- 
cil of  the  same  number  in  each  of  the  two  colonies. 

87 


Evolution  of  the  Constitution 

Each  council  in  the  colonies  was  to  govern  its  people 
according  to  such  laws  and  instructions  as  the  Crown 
should  give,  and  these  instructions  were  to  provide  for 
the  appointing  and  removal  of  members  of  each  council. 
But  to  each  council  was  distinctly  given  the  right  to 
defend  its  colony  by  war  on  sea  and  land  and  establish 
a  coin  to  pass  current  in  trade.  The  London  council 
was  to  have  a  general  oversight  of  both  the  colonies, 
but  its  powers  were  of  the  vaguest  kind.  This  charter 
was,  however,  a  great  advance  on  Sir  Walter's.  The 
law-making  power  was  taken  from  the  single  pro- 
prietor and  reserved  to  the  king,  and  the  administra- 
tion of  the  laws  was  given  to  a  more  or  less  numerous 
council. 

The  power  to  make  war  and  coin  money  was  of  a  de- 
cidedly political  nature,  and  shows  a  conscious  shaping 
of  the  beginnings  of  a  commonwealth.  But  the  charter 
did  not  resemble  any  part  of  the  British  Constitution 
6f  that  period.  So  far  as  it  resembles  anything  it  is 
more  like  the  arrangement  of  the  old  English  trading 
corporations.  They  were  very  apt  to  have  the  govern- 
ing power  in  the  hands  of  a  set  of  individuals,  called  a 
council  or  some  such  name.  Afterwards  there  was  a 
head,  called  president  or  governor,  with  a  council  to 
assist  him,  and  in  time  the  corporation  government  by 
president,  board  of  directors,  and  stockholders  was  de- 
veloped as  we  have  it  to-day. 

Thus,  the  charter  of  the  famous  Grocers'  Company, 
granted  in  1429,  places  the  whole  power  and  govern- 
ment in  three  or  four  individuals  called  wardens.  They 
are  to  govern  ;  and  apparently,  so  far  as  the  charter 

28 


Colonial  Charters  and  Constitutions 

speaks,  the  members — or  stockholders,  as  we  should 
now  call  them — have  no  vote,  and  there  is  no  head  or 
president  The  charter  of  the  Merchant  Adventurers, 
granted  in  1505,  shows  a  development  by  allowing  the 
adventurers  to  meet  and  elect  a  governor  or  governors 
and  also  "  four-and-twenty  assistants  to  the  said  gover- 
nor or  governors."  This  term  "assistants"  was  after- 
wards, as  we  shall  see,  used  in  the  Massachusetts  charter 
of  1629,  showing  very  clearly  how  our  American  forms 
of  government  originated  in  the  trading  charters.* 
The  first  Virginia  charter  is  evidently  framed  on  some 

*  An  interesting  account  of  some  of  these  old  companies  can 
now  be  found  in  Gawston  and  Keane's  "  Early  Chartered  Com- 
panies. ' '  They  were  all,  in  their  forms  of  government,  very  much 
like  the  early  charters  of  the  colonies  in  America.  They  were 
the  beginning  of  the  great  English  colonial  system,  and  were  for 
the  encouragement  of  trade,  exploration,  and  settlement  in  for- 
eign countries.  They  were  necessary  as  the  most  convenient 
method  of  concentrating  capital  and  energy,  because  private  indi- 
viduals could  not  bear  the  great  expense  of  contending  with  the 
pirates,  who  had  to  be  fought  with  heavy  armaments  or  bought  off 
with  expensive  presents.  These  necessities  of  warfare  first  sug- 
gested the  giving  of  governmental  powers,  which  were  rather 
novel  functions  for  traders.  The  chronological  order  of  the 
creation  of  these  companies  is  significant :  Merchant  Adventurers, 
1505  ;  Russia  Company  (for  trade  towards  Russia),  1554;  East- 
land Company  (also  for  trade  to  Russia),  1579;  Turkey  Com- 
pany (for  trade  to  the  Mediterranean),  1581  ;  Marocco  Company, 
1585  ;  First  Guinea  Company,  1588  ;  Elast  India  Company,  1599  ; 
Guiana  Company,  1609;  Bermuda  Company,  1612  ;  Second 
Guinea  Company,  1631  ;  China  Company,  1635;  Third  Guinea 
Company,  1662  ;  Canary  Company,  1665  ;  Hudson's  Bay  Com- 
pany, 1670  ;  Fourth  Guinea  Company,  1672. 

39 


Evolution  of  the  Constitution 

such  model.  Its  draughtsmen  naturally  followed  some 
of  the  forms  to  which  they  were  accustomed  in  organ- 
izing ordinary  enterprises  of  business,  and,  as  this  one 
was  to  found  a  settlement  in  a  new  country,  they  threw 
in  the  political  rights  to  coin  money  and  to  defend  the 
settlement  by  waging  war.  They  were  soon  to  become 
convinced  that  a  full-fledged  corporation  was  the  best 
form  of  government  for  establishing  a  colony. 

Three  years  after,  in  1 609,  another  charter  was  issued 
for  Virginia,  which  professes  to  be  an  enlargement  and 
improvement  on  the  first  one.  It  is  less  vague.  Ex- 
perience had  been  acquired,  and  more  details  and  more 
definite  arrangements  could  be  ventured  upon.  The 
striking  part  is  that  it  creates  an  out-and-out  corpora- 
tion modelled  on  the  trading  companies  of  the  time, 
with  the  usual  expressions  giving  a  common  seal,  per- 
petual succession,  and  the  right  to  hold  real  estate  and 
to  implead  and  be  impleaded. 

A  settlement  had  been  effected  in  1607,  on  the  James 
River,  within  the  territory  of  the  first  colony  ;  but  nothing 
had  been  accomplished  within  the  domain  of  the  second 
colony.  The  second  colony  was  therefore  abandoned, 
and  the  first  colony  incorporated  under  the  name  of 
"The  Treasurer  and  Company  of  Adventurers  and 
Planters  of  the  City  of  London  for  the  First  Colony  in 
Virginia."  A  trading  company  was  the  natural  form 
for  the  enterprise  to  take,  for  these  rather  reckless  ad- 
venturers who  were  going  to  Virginia  had  no  political 
project  in  their  minds,  and  were  not  bent  on  carrying 
out  any  particular  political  theory.  They  were  in  search 
of  gold  or  wealth  in  any  form  they  could  find  it,  and  for 

30 


Colonial  Charters  and  Constitutions 

that  purpose  the  king  was  allowing  them  to  enter  on  a 
tract  of  land  in  his  wilderness  domain. 

Their  quest  was  a  business  one ;  and  so  they  were 
incorporated  as  a  business  company,  with  one  or  two 
rough  provisions  added  to  enable  them  to  live  together 
in  the  wilderness.  They  were  a  trading  company  which 
might  also  have  to  fight  savages  or  pirates  or  the  king's 
enemies,  and  might  also  have  to  control  and  punish  un- 
ruly men  among  their  own  number.  They  were  very 
much  Hke  the  Hudson's  Bay  Company  and  the  East 
India  Company,  whose  charters  show  this  same  pecu- 
liarity of  an  ordinary  trading  charter  changed  slightly 
so  as  to  enable  its  members  to  contend  with  wild  nature 
and  wild  men. 

The  first  charter  of  Virginia  named  no  officer  as  head 
of  the  undertaking.  But  now  we  have  the  treasurer  as 
head,  and  the  charter  of  incorporation  goes  on  to  pro- 
vide that  there  shall  be  two  councils  as  in  the  former 
charter,  one  resident  in  England  and  the  other  resident 
in  the  colony.  The  council  in  England  is  to  appoint  a 
governor  and  other  officers  and  make  laws  for  the  col- 
ony, and  the  council  and  treasurer  are  to  be  elected  by 
the  members  of  the  company.  The  council,  treasurer, 
and  members  of  the  company  collectively  are  given  a 
sort  of  general  police  power  to  correct,  punish,  and 
pardon  offences,  and  the  governor  is  given  the  right  to 
make  use  of  martial  law  when  occasion  requires  it 

Here  we  have  some  decided  governmental  powers 
worked  out  under  the  forms  of  a  trading  corporation. 
A  definite  governor  or  executive  is  provided  for  the  first 
time ;  and  the  pardoning  power  appears  also  for  the  first 

3« 


Evolution  of  the  Constitution 

time  given  to  the  collective  legislative  body  of  the  whole 
company  as  well  as  to  the  governor  and  other  officials, 
and  not  to  the  governor  alone,  as  in  later  developments. 
The  right  of  the  company  to  elect  the  treasurer  and 
council  is  also  a  considerable  advance ;  and  the  abso- 
lutism of  the  two  previous  charters  has  disappeared. 

In  1611-12  another  charter  added  a  further  develop- 
ment, and  gave  to  the  treasurer  and  members  of  the 
company  the  right  to  hold  general  courts  or  meetings, 
and  to  make  laws,  appoint  officers,  arrange  the  manner 
of  government,  and  elect  persons  to  the  council.  Here 
we  have  the  power  of  making  laws  and  appointing  offi- 
cers taken  away  from  the  council  and  given  to  the  whole 
body  of  the  members  of  the  company, — a  definite  move 
towards  more  popular  government  within  the  forms  of 
a  trading  corporation.  The  council  is  relegated  to  the 
position  of  a  sort  of  executive  body  to  manage  the  af- 
fairs of  the  company  from  day  to  day,  and  we  shall  soon 
see  it  become  the  governor's  council.  There  is  cJso  a 
provision  allowing  the  company  to  admit  as  members 
aliens,  or  persons  not  liege  subjects  of  the  British  Crown, 
which  is  evidently  a  move  towards  the  right  possessed 
by  all  political  governments  to  naturalize  foreigners. 

Thus  far  the  American  form  of  government  as  devel- 
oped out  of  a  corporation  seems  to  be  a  council  and 
head  of  the  company  called  treasurer,  a  governor,  and 
the  members  of  the  company  meeting  in  a  body  to  leg- 
islate. But  under  the  condition  of  affairs  in  Virginia 
the  governor  became  more  and  more  of  an  important 
person,  and  the  colony  was  soon  ruled  by  governors 
with  a  strong  and  even  violent  hand, — a  method  which 

32 


Colonial  Charters  and  Constitutions 

was  doubtless  well  suited  to  the  restless  and  unruly 
spirits  of  the  adventurers.  One  of  the  governors  con- 
trolled them  by  martial  law,  which  the  charter  allowed 
to  be  used  in  case  of  necessity. 

Meantime  there  was  great  contention  in  England 
among  the  members  of  the  company  as  to  what  was  the 
proper  form  of  government  for  the  colony.  In  1619, 
under  the  powers  they  had  to  make  laws,  they  adopted 
a  new  political  organization,  evidently  the  result  of  ex- 
perience and  thought  The  governor  was  to  have  a 
council  to  assist  him  as  the  executive  of  the  colony,  and 
the  members  of  the  company  in  the  colony  were  to 
elect  representatives  to  a  little  legislative  assembly 
called  the  "house  of  burgesses."  Thus  the  right  of  all 
the  members  to  meet  and  enact  laws,  having  become 
obviously  inconvenient,  was  transferred  to  delegates. 

Here  we  have  the  germ  of  all  our  American  govern- 
ments and  of  the  National  Constitution.  It  is  simply  a 
slight  extension  of  the  forms  of  the  old  trading  corpo- 
ration to  suit  the  conditions  in  Virginia.  The  Massa- 
chusetts charter  of  1629,  which  was  modelled  on  the 
Virginia  charters  and  gave  the  law-making  power  to  the 
whole  body  of  the  freemen  or  members  of  the  company, 
was  developed  by  custom  into  the  same  form  that  pre- 
vailed in  Virginia,  The  members  of  the  company  found 
it  inconvenient  to  meet  all  together,  and  they  trans- 
ferred their  law-making  power  to  a  smaller  body  of 
delegates. 

This  simple  type  of  governor  and  council  for  the  ex- 
ecutive and  a  single  house  of  legislature  was  not  copied 
from  the  British  form  of  government,  but  was  developed 
3  33 


Evolution  of  the  Constitution 

by  circumstances  and  necessities  from  the  trading  com- 
pany. It  remained  the  fundamental  form  of  govern- 
ment in  the  colonies  for  more  than  a  hundred  years, 
constantly  putting  forth  branches  and  growths  which 
resembled  nothing  in  England,  but  resembled  very 
strongly  what  afterwards  became  parts  of  our  National 
Constitution.  We  shall  follow  the  details  of  all  these 
growths  and  gradually  see  the  governor's  council  ex- 
pand into  the  Senate  of  the  United  States. 

The  Virginia  charters  were  dissolved  in  1623,  and 
from  that  time  until  the  Revolution  the  colony  had  no 
charter  or  written  constitution.  The  form  of  govern- 
ment, however,  of  governor's  council  and  single  house 
of  legislature  survived,  and  showed  the  same  kind  of 
development  that  we  shall  find  in  the  other  colonies. 
The  governor  acquired  the  veto  power  on  legislation, 
the  right  to  pardon  criminals,  the  right  to  appoint  to 
office,  and  the  command  of  the  militia.  His  council 
showed  a  decided  tendency  to  develop  into  a  second 
or  upper  house  of  the  legislature.  In  1680  they  ceased 
to  sit  with  the  burgesses,  and,  as  time  went  on,  acquired 
more  and  more  legislative  functions. 

There  was  the  same  confusion  of  the  departments  of 
government  as  we  shall  notice  in  the  other  colonies. 
The  governor  was  not  only  an  executive  officer,  but  a 
judicial  officer  as  well,  and  acted  as  chancellor  and 
chief  justice.  He  also  had  the  power,  which  we  shall 
find  in  some  other  colonies,  of  adjourning  the  legisla- 
ture at  his  pleasure.  The  constitution  of  Virginia  be- 
came one  of  custom  and  laws  passed  from  time  to  time, 
the  result  of  what  had  been  done  under  the  charters,  of 

34 


Colonial  Charters  and  Constitutions 

what  had  been  done  without  them,  of  what  had  been 
done  by  the  Crown  and  the  royal  governors,  and  of 
what  the  popular  party  by  resistance  could  win  for  itself. 

"The  Agreement  between  the  Settlers  at  New. Ply- 
mouth" might  be  our  next  document,  as  it  was  made  in 
1620.  But,  although  much  sentimental  praise  has  been 
lavished  upon  it  by  some  writers,  it  is  not  a  charter,  nor, 
properly,  a  constitution,  and  still  less  a  frame  of  gov- 
ernment. It  was  drawn  up  on  the  "  Mayflower"  by  the 
Pilgrim  Fathers  before  they  landed  on  the  coast  of  Massa- 
chusetts, and  is  only  about  a  dozen  or  fifteen  lines  of 
print  to  the  effect  that  its  signers  solemnly  and  mutually 
combine  themselves  into  a  body  politic  to  be  governed 
by  laws  afterwards  to  be  prepared.  There  are  no  de- 
tails, there  is  no  frame  of  government  of  any  sort,  nor 
is  an  officer  of  any  kind  named.  It  is  merely  such  a 
simple  agreement  as  any  ship-load  of  people  of  any 
race  about  to  land  on  a  wild  coast  might  prepare.  It 
is  an  agreement  to  make  a  government  in  the  future, 
rather  than  the  government  itself 

We  shall  pass  it,  therefore,  and  take  up  the  charter  of 
New  England,  which  was  granted  in  the  same  year, — 
1620.  This  document  reveals  a  curious  reaction  ;  in  fact, 
a  return  to  the  absolutism  of  the  Virginia  charter  of  1606. 
A  council  of  forty  persons  is  created,  which  is  to  be  a 
corporation  and  to  continue  its  existence  by  elections 
among  its  own  members.  It  is  to  elect  one  of  its  mem- 
bers to  be  president  and  preside  over  its  meetings,  and 
has  in  every  respect  the  fullest  power  to  appoint  the 
governor  and  all  other  officers  and  to  make  all  laws 
which  shall  be  thought  necessary. 

35 


Evolution  of  the  Constitution 

The  reason  for  this  return  to  absolutism  may  have 
been  that  New  England  was  at  that  time  unsettled  and 
all  attempts  to  establish  a  permanent  colony  there  had 
failed.  The  climate  was  cold  and  the  country  barren 
and  unattractive.  A  council  with  full  power  might  be 
able  to  encourage  the  beginnings  of  settlements,  for  they 
could  work  in  their  own  way  without  interference. 

But  still,  even  amidst  this  absolutism,  there  are  signs 
of  advance.  The  corporation  is  called  a  "  body  poli- 
ticque  and  corporate,"  showing  a  consciousness  that 
these  corporations  were  becoming  something  more  than 
mere  trading  companies.  A  new  kind  of  corporation 
was  being  developed,  which  was  neither  a  private  nor  a 
municipal  corporation,  but  a  political  corporation.  The 
grant  of  judicial  power  is  also  more  liberal  than  any  that 
has  appeared  hitherto.  Instead  of  the  cautious  per- 
mission of  the  Virginia  charter  of  1611-12,  which  al- 
lowed the  council  merely  to  punish  crimes,  we  find  the 
New  England  council  given  full  judicial  authority  in 
civil  as  well  as  in  criminal  cases. 

When  they  came  to  making  laws  and  a  government 
for  New  England  under  their  absolute  authority  the 
council  were  evidently  influenced  by  the  advance  free 
government  had  already  made  in  Virginia.  Two  years 
after  they  received  their  charter  they  published  a  pam- 
phlet entitled  "A  Brief  Relation  of  the  Discovery  and 
Plantation  of  New  England,"  which  was  intended  to  en- 
courage settlers  and  described  the  sort  of  government 
the  council  had  decided  to  adopt.  The  government 
was  modelled  on  the  Virginia  type,  and  consisted  of  a 
governor  and  council  and  a  general  assembly  of  depu- 

36 


Colonial  Charters  and  Constitutions 

ties  elected  by  the  counties,  baronies,  and  hundreds  into 
which  the  county  was  divided,  A  slight  tendency  to 
advance  is  shown  in  the  provision  that  there  should  be  a 
treasurer  for  finance,  a  marshal  for  arms  and  war,  a  mas- 
ter of  ordnance  for  ammunition  and  artillery,  and  an 
admiral  for  all  marine  affairs.  The  president  and  coun- 
cil in  England  were  to  order  the  assembling  of  the  gen- 
eral assembly  and  "  give  life  to  the  laws,"  which  proba- 
bly meant  a  veto  power. 

The  next  charter  in  order  is  that  of  Massachusetts, 
granted  in  1629.  It  also  has  the  characteristics  of  a 
corporation,  and,  like  the  last  one,  calls  the  company  a 
body  "corporate  and  politique."  In  the  sort  of  gov- 
ernment created  by  it  the  Virginia  charter  of  1611-12 
is  followed  quite  closely,  with  a  slight  development 
There  were  to  be  a  governor,  a  deputy  governor,  and 
eighteen  assistants,  or  governor's  council,  all — including 
the  governor  and  deputy — to  be  elected  by  the  freemen 
or  members  of  the  company,  who,  together  with  these 
officers  whom  they  elected,  were  to  make  the  laws. 
This  is  nothing  more  than  an  ordinary  trading-company 
government,  in  many  respects  like  those  of  modem 
times.  The  freemen — that  is  to  say,  those  that  were 
made  free  of  the  company,  as  the  expression  was  in 
those  times — ^were  the  members  or  stockholders,  as 
we  should  now  call  them.  They  elected  the  assistants, 
who  corresponded  to  the  modem  board  of  directors  or 
trustees,  and  the  governor  corresponded  to  the  modem 
president. 

Very  quickly,  however,  the  freemen,  finding  it  incon- 
venient to  meet  in  a  body  to  transact  the  company's 

37 


Evolution  of  the  Constitution 

business,  elected  delegates  to  represent  them,  and  thus, 
as  in  Virginia,  a  legislature  was  formed, — the  outgrowth 
simply  of  an  inconvenience  in  administering  the  powers 
of  a  trading  company.  Again,  we  have,  as  in  Virginiei, 
the  typical  colonial  government, — governor,  governor's 
council,  and  a  single  house  of  legislature. 

The  charter  had  given  the  power  of  making  laws  to 
the  governor,  assistants,  and  all  the  freemen  assembled 
together.  This  was  a  confusion  of  executive  and  legis- 
lative functions,  natural  and  proper  enough  perhaps  in 
a  trading  company.  When  the  legislature  was  devel- 
oped out  of  the  inconvenience  of  the  freemen  all  meet- 
ing together,  the  same  confusion  continued.  The  legis- 
lature, the  assistants,  and  the  governor  sat  together  to 
make  laws  ;  and  after  a  time  the  assistants  sat  as  a  sep- 
arate body. 

This  mingling  of  the  distinct  departments  of  govern- 
ment was  common  in  all  the  colonies,  and  was  the  natu- 
ral result  of  a  development  from  trading  companies.  It 
continued  all  through  the  colonial  period,  and  at  times 
grew  worse,  for  the  judicial  function  was  often  added  to 
the  executive  and  sometimes  to  the  legislative.  Its  un- 
soundness and  inconvenience  were  at  last  realized,  and 
in  the  constitutions  of  1776  efforts  were  made  to  correct 
it  Several  of  those  constitutions  announce  with  great 
emphasis  the  principle  that  the  legislative,  judicial,  and 
executive  departments  must  never  be  confused  and 
never  exercised  by  the  same  persons.  In  the  National 
Constitution  no  such  principle  is  stated,  because  it  had 
become  fixed  and  settled,  and  it  was  necessary  only  to 
act  upon  it     The  national  document  certainly  made  all 

38 


Colonial  Charters  and  Constitutions 

those  departments  entirely  distinct,  and  the  evolution  on 
this  point  was  complete. 

In  the  Massachusetts  charter,  as  in  the  Virginia  char- 
ter, there  is  no  copying  of  the  forms  of  the  British  gov- 
ernment There  is  no  double  legislature,  no  House 
of  Lords  and  House  of  Commons  to  act  as  checks  on 
each  other.  Some  would  say  that  the  assistants,  or  gov- 
ernor's council,  were  like  the  English  Privy  Council  of 
the  king.  But  the  king's  Privy  Council  did  not  sit  with 
the  English  House  of  Commons,  and  was  not  elected 
by  the  people,  as  the  assistants  were.  The  assistants 
were  an  executive,  legislative,  and  judicial  body,  acting 
as  magistrates,  laying  down  rules  and  regulations  in  the 
absence  of  a  meeting  of  the  freemen  or  their  delegates, 
and  giving  advice  to  the  governor, — performing,  in 
short,  very  much  the  same  functions  that  a  corporation 
board  of  directors  would  now  perform  under  the  same 
circumstances. 

The  persons  who  influenced  the  draughting  of  the 
Massachusetts  charter  were,  first  of  all,  the  Puritans,  who 
wanted  it,  and,  secondly,  the  officers  of  the  Crown, 
whose  duty  was  merely  to  see  that  the  rights  of  the 
British  government  were  protected.  The  Crown  offi- 
cers had  no  wish  to  create  a  political  government  in  the 
American  wilderness,  and  least  of  all  to  create  it  for 
such  persons  as  the  Puritans,  who  had  already  made 
themselves  so  troublesome  by  political  agitation.  It 
would  be  better  to  limit  such  reckless  and  fanatical  men 
within  the  form  of  a  trading  charter  rather  than  give  them 
a  government  which  in  either  model  or  dignity  could 
be  compared  to  that  of  Great  Britain.     The  Puritans, 

39 


Evolution  of  the  Constitution 

on  the  other  hand,  would  have  been  the  last  persons  to 
want  a  government  on  such  a  model ;  for  they  were 
hostile  to  the  British  government,  and  had  little  or  no 
sympathy  for  its  monarchical  and  aristocratic  forms. 

They  succeeded  admirably  in  getting  cdl  they  wanted 
within  the  forms  of  a  corporation.  There  was  no  pro- 
vision, as  in  subsequent  charters,  requiring  their  laws  to 
be  submitted  to  the  Crown  for  approval.  They  could 
elect  their  governor  and  all  other  officers.  In  fact,  the 
charter  proved  to  be  so  liberal  that  the  Puritans  set  up 
under  it  what  was  in  effect  almost  an  independent  state. 

We  must  next  dispose  of  some  charters  which  were 
of  a  peculiar  character  and  show  but  little  development 
The  first  is  that  of  Maryland,  granted  in  1632.  It  was 
a  proprietary  grant,  or  conveyance  of  a  great  tract  of 
land,  making  Lord  Baltimore  the  feudal  lord  and  owner  ; 
and  in  these  proprietary  grants  the  Crown  usually  gave 
its  favorite  the  privilege  of  creating  any  sort  of  govern- 
ment he  and  his  colonists  could  agree  upon.  This  was 
a  considerable  advance  on  the  absolutism  of  the  pro- 
prietary grant  to  Sir  Walter  Raleigh,  who  could  govern 
without  consulting  his  colonists  at  all. 

Lord  Baltimore  was  allowed  to  make  laws  "  with  the 
advice  and  consent"  of  the  freemen,  or  a  majority  of 
them  or  their  delegates.  He  was  also  to  have  the  privi- 
lege of  appointing  judges  and  various  other  officers,  and 
of  pardoning  criminals.  These  powers  of  appointing 
and  pardoning  were  afterwards  a  common  attribute  of 
colonial  governors,  and  show  a  slight  development 
There  was  also  some  advancement  shown  in  the  power 
given  Lord  Baltimore  to  establish  courts  of  law  for  both 

40 


Colonial  Charters  and  Constitutions 

criminal  and  civil  cases.  The  previous  charters  had 
given  only  criminal  jurisdiction. 

There  was  a  curious  provision  allowing  the  proprietor 
to  make  laws  without  the  consent  of  the  freemen  in  any 
sudden  emergency  when  they  could  not  be  called  to- 
gether in  time.  This  privilege,  which  was  also  given  to 
William  Penn  in  the  Pennsylvania  charter,  and  to  the 
proprietors  of  the  Carolina  charters  of  1663  and  1665, 
was  seldom  if  ever  exercised.  It  was  so  close  to  des- 
potism that  the  mere  mention  of  it  would  arouse  the 
indignation  of  the  people.  Penn  threatened  to  use  it, 
or,  rather,  reminded  the  people  that  he  could  use  it,  and 
seriously  injured  his  popularity. 

We  may  also  at  this  point  dismiss  the  Pennsylvania 
charter  of  1681,  which,  so  far  as  a  form  of  government 
was  concerned,  was  the  same  as  Maryland's.  The  two 
proprietary  charters  of  the  Carolinas — one  in  1663  and 
the  other  in  1665 — and  the  grant  of  Maine  in  1639 
may  be  dismissed  in  the  same  way.  They  gave  the  pro- 
prietor the  same  rights  as  the  Maryland  charter.  The 
two  proprietary  grants  of  New  Hampshire — one  in 
1629  and  the  other  in  1635 — were  very  bald  and  crude, 
simply  giving  John  Mason  the  right  to  make  a  govern- 
ment, and  if  the  people  thought  it  was  wrong  they  could 
appeal  to  the  council  of  the  New  England  Company  that 
made  the  grant  The  grants  to  the  Duke  of  York,  one 
in  1664  and  the  other  in  1674,  were  mere  gifts  of  absolute 
power,  like  Sir  Walter  Raleigh's  charter  of  1584. 

The  fundamental  orders  of  Connecticut  of  1638  come 
next  in  order  after  the  Maryland  charter  of  1632.  These 
orders,  as  they  are  called,  form  a  constitution  which  is 

4« 


Evolution  of  the  Constitution 

exceedingly  interesting,  because  it  is  the  first  constitu- 
tion made  upon  American  soil  without  any  interference 
or  influence  from  the  British  Crown.  The  Connecticut 
people  who  made  it  had  migrated  from  the  Massachu- 
setts colony  and  settled  themselves  about  the  site  of  the 
present  town  of  Hartford.  They  were  outside  of  the 
jurisdiction  of  Massachusetts.  In  fact,  they  were  not 
within  the  limits  of  any  colony,  and  had  no  title  except 
a  title  of  mere  occupancy  to  the  land  on  which  they 
settled.  They  drew  up  the  fundamental  orders  by  mu- 
tual agreement  and  understanding  among  themselves, 
and  we  should  naturally  expect  it  to  be  a  document 
somewhat  resembling  the  Massachusetts  government  and 
at  the  same  time  without  any  of  the  trammels  of  corpo- 
ration forms  or  Crown  influence. 

It  is  curiously  worded,  and  begins  wrong  end  fore- 
most The  duties  of  the  legislature  are  described  be- 
fore we  are  told  that  there  is  to  be  a  legislature  at  all. 
But  as  we  read  on  it  seems  that  the  people  of  the  towns 
were  to  send  deputies  to  an  assembly  which  was  called 
the  general  court  This  general  court  had  two  stated 
meetings  a  year, — one  in  April,  called  the  court  of  elec- 
tion, at  which  a  governor  and  other  public  officers  were 
to  be  chosen,  and  another  in  September,  for  passing  laws 
and  transacting  general  business. 

The  magistrates  were  apparently  a  governor's  coun- 
cil, like  the  assistants  in  Massachusetts.  In  fact,  the 
Massachusetts  assistants  were  often  spoken  of  as  magis- 
trates. The  governor  was  to  summon  the  general  court 
a  month  before'  the  time  of  the  meeting,  and,  "if  the 
governor  and  the  greater  part  of  the  magistrates  see 

4« 


Colonial  Charters  and  Constitutions 

cause  upon  any  special  occasion  to  call  a  general  court, 
they  may  give  order  to  the  secretary  so  to  do  within 
fourteen  days'  warning."  This  power  to  call  the  legis- 
lature together  in  an  emergency  was  afterwards  given  to 
the  president  in  the  National  Constitution. 

When  the  general  court  met  it  was  to  be  composed 
of  the  deputies  and  also  the  governor  and  at  least  four 
of  the  magistrates.  There  were  to  be  six  magistrates 
elected  by  the  whole  body  of  the  freemen,  and  they  were 
given  judicial  power.  But  apparently  the  governor  was 
to  be  elected  by  the  general  court. 

That  this  instrument  was  in  the  main  a  copy  of  the 
government  of  Massachusetts  as  it  had  developed  under 
the  charter  is  quite  evident  We  have  the  governor  and 
his  council  of  assistants  or  magistrates,  a  house  of  depu- 
ties elected  by  the  people,  and  governor,  magistrates, 
and  deputies  all  sit  together  as  a  single-branch  legisla- 
ture. The  only  difference  is  that  the  governor  seems  to 
be  elected  by  the  general  court  instead  of  by  the  people, 
and  this  is  easily  accounted  for  when  we  find  that  for  a 
short  time  in  Massachusetts  the  right  to  elect  the  gov- 
ernor was  surrendered  by  the  freemen. 

Even  when  left  to  themselves,  therefore,  and  uninflu- 
enced by  the  Crown,  the  colonists  seem  to  have  followed 
the  forms  already  in  existence  as  developed  from  the 
trading-company  charters. 

Only  one  or  two  other  points  in  the  Connecticut  fun- 
damentals deserve  mention.  The  magistrates  are  dis- 
tinctly given  the  power  to  sit  as  a  court  or  as  separate 
courts  of  law.  They  were  to  be  guided  by  the  laws  as 
established  from  time  to  time,  and,  when  there  were  no 

43 


Evolution  of  the  Constitution 

laws,  by  the  word  of  God,  and  this  was  a  familiar  custom 
in  Massachusetts.  The  Connecticut  governor  was  to 
preside  over  the  general  court,  and  could  not  adjourn  it 
without  its  consent  But  the  most  striking  advance  is  a 
clause  giving  the  general  court  the  power  of  impeaching 
public  officers,  and  this  is  the  first  appearance  of  the 
power  of  impeachment. 

In  1643  the  inhabitants  of  Rhode  Island  were  given 
a  patent  which  allowed  them  to  rule  themselves  by  such 
form  of  government  as  the  majority  should  find  suitable 
to  their  condition.  As  this  patent  contains  no  special 
form  of  government  and  is  merely  a  license  to  make  any 
government  that  shall  be  suitable  to  the  majority,  it  need 
not  be  discussed  further  than  to  say  that  it  was  an  ob- 
vious step  towards  referring  all  political  power  to  the 
people.  The  government  established  under  it  was  mod- 
elled on  those  that  already  existed  in  Massachusetts  and 
Virginia,  and  consisted  of  a  governor,  governor's  coun- 
cil, and  assembly  elected  by  the  people. 

Our  next  charter  belongs  to  Connecticut,  and  may  be 
considered  at  the  same  time  with  the  charter  of  Rhode 
Island,  for  the  two  were  only  a  year  apart,  being  granted 
respectively  in  1662  and  1663,  and  are  almost  precisely 
alike.  They  are  also  like  the  Massachusetts  charter,  and 
a  slight  advance  upon  it. 

The  Connecticut  people  had  come  from  Massachu- 
setts, and  when  they  sent  Winthrop  to  England  as  their 
agent  to  obtain  a  charter  he  naturally  followed  the  Mas- 
sachusetts model,  and  the  Crown  officers  seem  to  have 
had  no  objection.  It  was  so  liberal  in  its  terms  that 
it  always  has  been  somewhat  of  a  wonder  how  it  was 

44 


Colonial  Charters  and  Constitutions 

obtained,  and  stories  have  been  told  of  the  influence 
exercised  by  Winthrop  with  a  ring  which  his  father  had 
received  from  Charles  I.  At  any  rate,  Charles  II.  and 
his  ministers  seem  to  have  been  in  an  easy  mood,  and 
not  so  stringent  in  their  ideas  of  colonial  rule  as  they 
afterwards  became.  The  charter  suited  the  Connecticut 
people  so  well  that  they  refused  to  abolish  or  alter  it  in 
the  Revolution,  and  lived  under  it  until  the  year  1818. 
It  may  therefore  be  regarded  as  very  American  and  in 
many  respects  a  native  product 

It  is  very  general  in  its  provisions  for  government,  is 
still  in  the  corporation  form,  and  calls  the  company  it 
creates  a  body  "corporate  and  politick."  The  freemen 
were  to  elect  the  governor,  deputy  governor,  and  twelve 
assistants ;  and  the  assistants  were,  of  course,  intended 
to  be  a  governor's  council.  So  far  it  is  just  like  the 
charter  of  Massachusetts. 

The  Massachusetts  charter,  it  will  be  remembered, 
provided  that  all  the  members  of  the  company  were  to 
meet  together  in  a  body  to  legislate,  and  this,  being 
found  inconvenient,  was  changed  by  custom  and  a 
house  of  delegates  created.  The  Connecticut  charter, 
however,  creates  this  house  of  delegates  at  once.  In 
other  words,  it  copied  the  Massachusetts  form  of  gov- 
ernment as  it  had  developed  up  to  the  year  1662,  and 
so  far  was  an  advance  on  the  forms  of  the  old  trading 
corporations.  It  also  advanced  by  giving  the  name 
general  assembly  to  the  governor,  assistants,  and  house 
of  deputies,  when  they  all  met  together  to  enact  laws, — 
a  name  which  became  very  common,  and  is  still  retained 
in  some  of  our  States. 

45 


Evolution  of  the  Constitution 

The  general  assembly  was  given  the  power  to  punish 
crimes  and  offences,  and  also  the  power  to  pardon.  In 
the  colonial  governments  the  pardoning  power  was  some- 
times given  to  the  executive  department  and  sometimes 
to  the  legislative,  until,  as  we  near  the  National  Consti- 
tution, it  becomes  a  fixed  prerogative  of  the  executive. 

Besides  the  general  power  to  make  laws,  this  general 
assembly  was  distinctly  given  the  right  to  create  and 
organize  general  courts  of  justice,  both  civil  and  crimi- 
nal. This  right  had  been  given  for  the  first  time  to 
Lord  Baltimore  in  the  Maryland  charter  of  1632.  One 
might  suppose  that  it  would  be  implied  in  the  power 
to  make  laws.  But  evidently  there  was  a  doubt  on  this 
subject,  and  the  existence  of  this  doubt  shows  how  gov- 
ernment was  developing  out  of  the  forms  of  the  trading 
corporations. 

To  create  courts  which  shall  enforce  rules  of  conduct 
by  seizing  the  property  of  citizens  in  some  cases,  and 
seizing  their  persons  in  other  cases  and  condemning 
them  to  imprisonment  or  death,  is  a  very  important 
power,  and  one  of  high  prerogative.  It  is  not,  and 
never  has  been,  the  usual  incident  of  a  business  corpo- 
ration. It  might  possibly  be  implied  as  part  of  the 
necessary  powers  of  a  corporation  which  was  to  under- 
take the  unusual  task  of  settiing  and  planting  a  wilder- 
ness. But  evidently  it  was  thought  better,  as  these 
colonial  planting  and  trading  corporations  became  more 
and  more  like  real  governments,  to  give  somebody  in 
them  the  distinct  and  express  power  of  creating  courts 
of  justice.  The  failure  to  make  this  matter  clear  in  the 
Pennsylvania  constitution  of  1701  afterwards  led  to  a 

46 


Colonial  Charters  and  Constitutions 

very  bitter  dispute  whether  the  governor  or  the  assem- 
bly had  the  right  to  institute  courts. 

As  the  Rhode  Island  charter  was  granted  the  year 
after  that  of  Connecticut  and  contains  the  same  pro- 
visions of  government,  it  is  not  necessary  to  enlarge  on 
it  in  detail.  It  was  obtained  by  a  Baptist  minister,  Rev. 
John  Clarke,  who,  like  Winthrop  of  Connecticut,  went 
over  to  England  as  agent  He  naturally  followed  the 
easiest  course,  and  obtained  a  charter  like  the  one  just 
granted  to  Connecticut,  which  at  that  time,  in  New 
England,  was  generally  believed  to  be  the  best  instru- 
ment of  government 

Thus  we  have  in  the  year  1663  three  specimens  of 
the  most  advanced  form  of  American  government  It 
is  allowable  to  call  them  American,  and  not  English, 
because  the  Massachusetts  government  was  to  a  large 
extent  a  growth  on  the  soil,  and  had  added  to  itself 
the  house  of  delegates,  which  was  not  provided  for  in 
the  charter  as  drawn  in  England.  The  other  two  had 
copied  this  development  and  added  to  it  an  advance  of 
their  own  in  distinctly  saying  that  the  general  assem- 
bly should  have  the  power  to  create  courts  of  justice. 
Moreover,  it  is  to  be  observed  that,  as  these  two  were 
obtained  by  agents  who  went  from  the  colonies  to  Eng- 
land, they  may  be  said  to  have  been  draughted  by 
American  influence,  the  result  of  American  experi- 
ence, and  they  were  not  the  mere  theorizing  of  Crown 
officers  or  of  persons  who  had  never  lived  in  America. 

It  should  be  noticed  that  in  none  of  these  govern- 
ments was  the  legislature  composed  of  an  upper  and  a 
lower  house  acting  as  a  check  on  each  other.     The 

47 


Evolution  of  the  Constitution 

legislature  was  to  consist  principally  of  representatives 
elected  by  the  people.  The  governor's  assistants,  or 
council,  were  to  sit  with  them,  not  as  a  separate  body 
to  act  as  a  check,  but  as  a  part  of  them.  There  were 
as  yet  no  veto  power  and  no  pardoning  power  in  the 
governor,  and  no  detailed  description  of  his  relation  to 
the  legislature  or  of  the  legislature's  relation  to  hinx 
There  was  not  the  slightest  resemblance  to  the  British 
government  of  King,  Commons,  and  House  of  Lords. 
All  I  see,  and  all  I  think  any  one  can  see,  is  an  English 
business  corporation  altered  a  little  to  suit  unusual  cir- 
cumstances,— the  circumstances  of  planting  and  trade 
instead  of  trade  alone, — and  by  experience  in  those  cir- 
cumstances somewhat  developed  and  enlarged  in  the 
direction  of  a  true  political  government 

Two  or  three  years  after  these  charters  of  Connecti- 
cut and  Rhode  Island  another  frame  of  government  was 
prepared  for  the  colonies,  and  this  was  the  "  Concessions 
and  Agreements  of  the  Proprietors  of  East  Jersey,"  of 
1665.  This  instrument  was  not  a  royal  charter,  and  in 
the  making  of  it  the  Crown  officers  had  no  influence.  It 
was  prepared  by  the  proprietors  of  the  province  accord- 
ing to  their  own  ideas,  and  it  is  interesting  to  observe 
that  it  accepts  the  form  of  government  as  developed  in 
Virginia  and  New  England  under  the  royal  charters, 
and  adds  some  developments  and  improvements. 

There  is  to  be  a  governor,  with  a  council  of  from  six 
to  twelve,  "with  whose  advice  and  consent"  he  is  to 
govern  ;  a  house  of  deputies,  elected  by  the  people  ;  and 
governor,  council,  and  deputies  are  to  sit  together  in 
making  laws,  and  be  called  the  general  assembly ;  and 

48 


Colonial  Charters  and  Constitutions 

the  assembly  is  to  have  the  right  to  establish  courts  of 
law.  So  far  the  New  England  type  is  strictly  followed. 
Then  comes  an  advance,  and  some  details  are  added, 
showing  a  conscious  framing  of  more  complete  govern- 
ment. 

The  assembly  is  told  that  it  may  appoint  its  own  time 
of  meeting  and  adjourn  when  it  pleases.  This  same 
power  of  adjourning  at  pleasure  had  been  given  to  the 
assembly  by  the  Fundamental  Orders  of  Connecticut  in 
1638,  but  it  was  so  much  of  an  advance  that  it  was  not 
followed  in  the  Connecticut  charter  of  1662  or  in  the 
Rhode  Island  charter  of  1663.  Even  in  these  Conces- 
sions of  East  Jersey  of  1665  it  was  found  to  be  ahead 
of  time,  and  had  to  be  set  back. 

Other  increased  details  of  power  follow.  The  as- 
sembly was  to  decide  what  should  be  its  quorum,  levy 
taxes,  lay  out  ports  and  towns,  divide  the  country  into 
counties  and  districts,  naturalize  foreigners,  establish  forts 
and  arm  them,  and  organize  the  militia.  The  governor 
and  his  council  were  to  appoint  the  judges  of  the  courts 
and  see  that  they  and  all  other  officers  did  their  duty ; 
also  to  appoint  military  officers,  to  command  the  militia, 
and  to  reprieve  criminals  until  the  case  could  be  heard  by 
the  proprietors,  with  whom  rested  the  pardoning  power. 

Here  we  have  a  large  and  detailed  development  of 
both  legislative  and  executive  authority,  taking  Ameri- 
can government  a  long  way  out  of  the  old  forms  of 
trading  corporations  ;  and  we  also  find  that  the  pro- 
prietors retained  the  privilege  of  rejecting  all  bills  passed 
by  the  general  assembly,  which  was  a  veto  power  like 
that  of  Lord  Baltimore  in  the  Maryland  charter  of  1632. 
4  49 


Evolution  of  the  Constitution 

This  somewhat  excessive  development  was  the  result 
of  the  constitution  being  framed  not  by  the  people  who 
were  to  live  under  it  or  by  regularly  constituted  officers 
of  the  Crown,  but  by  a  few  men  of  good  education  and 
advanced  ideas,  who  were  free  to  theorize  a  little  and 
carry  out  favorite  principles.  Whenever  men  of  this  sort 
draughted  an  American  constitution  we  usually  find  an 
abnormal  development,  in  some  cases  so  abnormal  as  to 
produce  reaction. 

In  the  present  instance  of  the  constitution  of  East 
Jersey  an  amendment  was  made  in  1672  taking  away 
from  the  assembly  the  right  to  control  its  own  adjourn- 
ments and  giving  that  control  to  the  governor  and  his 
council.  But  two  years  afterwards,  in  1674,  the  develop- 
ment went  on,  and  we  have  an  instance  of  an  attempt  to 
create  a  double-branch  legislature.  The  governor  and 
council  were  no  longer  to  sit  with  and  vote  with  the 
deputies,  but  to  sit  by  themselves  and  have  a  veto  on 
everything  passed  by  the  deputies. 

This  constitution  of  East  Jersey  and  the  constitution 
of  West  Jersey,  to  be  noticed  hereafter,  were  abrogated 
in  1 702,  when  both  provinces  were  surrendered  to  the 
Crown.  After  that  the  Jerseys  were  ruled  as  one  colony 
by  governors  appointed  by  the  king,  without  charter  or 
constitution,  the  people  always  protesting  that  they  still 
retained  all  their  rights  under  the  old  proprietary  Con- 
cessions. 

About  four  years  after  the  "  Concessions  and  Agree- 
ments of  the  Proprietors  of  East  Jersey"  another  charter 
appears,  which  seems  to  have  been  almost  exclusively 
the  work  of  one  man.     This  was  the  famous  constitu- 

50 


Colonial  Charters  and  Constitutions 

tion  of  John  Locke,  in  1669.  It  was  prepared  for  the 
government  of  the  CaroHnas  and  only  partially  put  in 
operation.  It  was  never  successful,  and  was  abrogated 
in  1693. 

It  was  not  made  by  the  people  themselves  or  by  prac- 
tical men  who  were  politicians  or  lawyers,  but  by  a  phi- 
losopher who  was  idealizing.  Nevertheless,  it  is  valuable 
as  showing  development,  for  Locke,  although  a  philos- 
opher, was  also  a  human  being,  influenced  by  the  opinion 
of  his  time,  and  he  had  read  all  the  charters  and  con- 
stitutions of  his  day  and  knew  the  problems  to  be  solved. 
In  fact,  he  foresaw  one  of  the  problems  of  the  future  in 
a  very  remarkable  way.  He  emancipated  himself  com- 
pletely from  the  forms  of  a  trading  corporation  and 
attempted  to  create  an  out-and-out  American  political 
government 

He  began  in  the  most  scientific  manner  by  dividing 
the  province  into  counties,  and  the  counties  into  seigni- 
ories, baronies,  and  precincts,  and  the  precincts  into 
colonies.  The  head,  or  governor,  was  to  be  called  the 
palatine.  There  were  to  be  lords  proprietors,  land- 
graves, and  caziques  ;  also  admirals,  chamberlains,  chan- 
cellors, high  stewards,  chief  justices,  and  treasurers.  No 
lawyers  were  to  be  allowed,  nor  could  any  one  plead  for 
a  fee.  Not  satisfied  with  making  the  constitution  and 
laws  secure  by  the  absence  of  lawyers,  he  provided  that 
there  should  be  no  comments  or  expositions  of  any  kind 
on  the  constitution  or  statutes,  so  that  they  might  always 
remain  clear  and  easy  to  understand.  The  constitution 
was  never  to  be  altered  in  any  way,  and,  that  it  might 
not  be  gradually  and  imperceptibly  altered  by  laws,  all 


Evolution  of  the  Constitution 

laws  were  to  become  inoperative  one  hundred  years  after 
their  passage. 

But  in  the  midst  of  all  these  extraordinary  provisions 
we  begin  to  see  some  light  when  we  find  him  providing 
for  a  registry  of  deeds  and  mortgages  in  each  precinct 
A  similar  registry  had  been  provided  for  in  the  Con- 
cessions of  East  Jersey.  He  also  provided  for  the  col- 
lection of  vital  statistics,  and  a  little  closer  attention 
reveals  a  double-branch  legislature.  His  grand  council 
was  a  separate  legislative  body,  whose  function  was  to 
propose  measures  for  the  lower  house,  or  parliament,  as 
it  was  called,  and  nothing  could  be  proposed  in  this  par- 
liament unless  it  had  passed  the  grand  council.  This 
was  the  first  appearance  in  American  written  constitu- 
tions of  a  double-branch  legislature,  and  it  was  followed 
in  1774  in  the  amendment  to  the  Concessions  of  East 
Jersey. 

The  plan  of  giving  the  upper  house  the  sole  power  of 
originating  legislation  was  some  years  afterwards  intro- 
duced into  Pennsylvania  by  William  Penn,  But  it  was 
very  unpopular,  subversive  of  the  ordinary  political  rights 
of  Englishmen,  and  finally  defeated  by  the  people. 

Besides  the  attempt  to  form  a  double  legislature,  this 
constitution  of  Locke  gives  an  elaborate  sort  of  veto  on 
legislation  to  the  palatine  and  his  court  and  some  of  the 
lords  proprietors.  Leaving  out  what  was  the  result  of 
Locke's  individual  and  peculiar  views,  this  constitution 
adds  something  to  the  development  reached  in  the 
document  last  considered  of  East  Jersey,  while  in  the 
main  it  follows  it  quite  closely. 

But  Locke  foresaw  in  a  curious  way  that  the  great 

5a 


Colonial  Charters  and  Constitutions 

difficulty  with  these  written  constitutions  would  be  in 
devising  some  body  or  department  which  should  prevent 
infringements  and  prevent  the  passage  of  unconstitu- 
tional laws.  This  problem  was  afterwards  attempted 
to  be  solved  in  some  of  the  constitutions  of  1776  by 
creating  a  board  of  censors,  whose  duty  it  should  be 
to  prevent  infringements  and  expose  them  when  com- 
mitted. Since  then  the  Supreme  Court  of  the  United 
States  and  the  courts  of  last  resort  in  each  State  have 
become  the  guardians  of  constitutional  integrity.  But 
the  only  method  Locke  could  think  of  besides  limiting 
the  life  of  all  laws  to  a  hundred  years  was  to  intervene 
a  delay  and  reconsideration  between  the  passage  of  a 
suspected  law  by  the  parliament  and  its  approval  by  the 
palatine.  His  provision  on  this  point  is  so  curious  that 
it  is  worth  quoting  in  full.  The  suspected  act  could  be 
protested  for  unconstitutionality  : 

"And  in  such  case,  after  full  and  free  debate,  the  several  es- 
tates shall  retire  into  four  separate  chambers, — ^the  palatine  and 
proprietors  into  one,  the  landgraves  into  another,  the  caziques 
into  another,  and  those  chosen  by  the  precincts  into  a  fourth, — 
and  if  the  major  part  of  any  of  the  four  estates  shall  vote  that  the 
law  is  not  agreeable  to  this  establishment  and  these  fundamental 
constitutions  of  the  government,  then  it  shall  pass  no  farther,  but 
be  as  if  it  had  never  been  proposed." 

Next  after  Locke's  attempt  at  constitution-making 
comes  the  "  Concessions  and  Agreements  of  tlie  Pro- 
prietors of  West  Jersey,"  which  appeared  in  1677.  It 
begins  by  appointing  commissioners  who  are  to  gov- 
ern the  colony  by  instructions  received  from  the  pro- 
prietors until  other  commissioners  are  elected  by  the 

53 


Evolution  of  the  Constitution 

inhabitants,  and  these  commissioners  elected  by  the  in- 
habitants are  to  govern  until  a  general  assembly  is 
elected.  Then  comes  "The  Charter  or  Fundamental 
Laws  Agreed  Upon." 

It  is  quite  likely  that  the  draughtsmen  of  these  fun- 
damental laws  had  been  reading  Locke's  constitution, 
for  they  oegin  by  trying  to  invent  a  method  of  prevent- 
ing unconstitutional  legislation.  The  constitution  must 
not  be  violated  by  the  assembly,  they  say,  and  any  as- 
semblyman moving  anything  unconstitutional  shall,  on 
proof  of  seven  eye-witnesses,  be  proceeded  against  as  a 
traitor.  Then  follow  a  few  provisions  about  trial  by 
jury  which  at  the  time  of  the  Revolution  would  have 
been  included  under  the  head  of  what  was  usually  called 
a  "  Bill  of  Rights."  These  bills  of  rights  were  generally 
affixed,  in  some  form  or  other,  to  all  the  constitutions  of 
1776,  and  this  constitution  of  West  Jersey  shows  the  be- 
ginning of  them  in  American  governmental  documents. 

The  remaining  provisions  for  West  Jersey  are,  how- 
ever, very  meagre.  A  registry  of  deeds  is  provided,  as 
in  Locke's  constitution  and  in  the  Concessions  of  East 
Jersey.  The  assembly  may  fix  its  own  quorum,  adjourn 
as  it  pleases,  erect  courts  of  law,  appoint  judges,  and  lay 
out  towns  and  counties.  No  governor  is  provided,  but 
the  assembly  is  to  elect  ten  commissioners,  who  are  to  be 
the  executive.  Certainly  this  was  a  very  crude  instru- 
ment,— of  slight  advance,  and  in  some  respects  a  re- 
action. The  same  fate  befell  it  as  befell  the  Conces- 
sions of  East  Jersey.  It  was  surrendered  and  abrogated 
when  the  two  provinces  became  one  colony  under  direct 
royal  government  in  1702. 

54 


Colonial  Charters  and  Constitutions 

New  Hampshire's  charter  comes  next,  and  this  also 
shows  only  a  slight  development  It  was,  however,  not 
properly  a  charter,  but  a  mere  royal  commission  granted 
in  1680  for  the  purpose  of  gaverning  the  province  during 
the  king's  pleasure.  At  first  New  Hampshire  had  been 
a  proprietary  colony  under  John  Mason  ;  but  the  pro- 
prietorship was  not  successful,  and  the  settlers  sought 
the  protection  of  Massachusetts  in  1641,  and  remained 
under  her  tutelage  until  1675. 

The  royal  commission  of  1680,  though  not  a  charter, 
is  professedly  a  method  of  government,  and  shows  in  a 
rough  way  some  of  the  general  ideas  that  were  in  all 
the  colonial  governments.  The  president  and  his  coun- 
cil were  to  be  the  executive  of  the  province,  control  the 
militia,  encourage  good  living  and  virtue,  and  also  act 
as  a  court  of  justice, — a  very  gross  confusion  of  the  de- 
partments. There  was  to  be  a  house  of  representatives 
to  make  the  laws,  and  the  president  and  council  had  an 
absolute  veto  power. 

Here  it  is  evident  we  have  the  Massachusetts,  Con- 
necticut, and  Rhode  Island  charters  over  again  with  a 
slight  development  The  governor  or  president,  with 
his  council,  is  given  the  veto  power,  which  had  not  be- 
fore been  given  in  New  England. 

The  president  and  council  are  also  given  the  power 
of  commanding  the  militia.  This  power  was  not  dis- 
tinctly given  in  the  Massachusetts  charter,  or  in  either 
of  the  other  two  New  England  charters  which  were 
modelled  on  it  though,  like  the  power  to  create  courts 
of  law,  it  might  doubtless  have  been  implied.  But  now 
we  find  it,  as  in  the  East  Jersey  Concession,  distinctly 

55 


Evolution  of  the  Constitution 

given  to  a  definite  department  as  the  power  to  create 
courts  was,  as  already  shown,  distinctly  given.  The 
addition  of  these  two  powers,  which  also  appear  in  a 
crude  way  in  the  Jersey  constitutions,  shows  a  gradual 
working  out  of  the  details  of  a  regular  government  In 
subsequent  frames  of  government  we  find  them  given 
with  more  or  less  detail  all  the  way  down  to  the  National 
Constitution,  where  they  appear  in  their  most  mature 
form. 

But  the  most  interesting  part  of  the  New  Hampshire 
commission  is  a  clause  directing  the  president  to  recom- 
mend to  the  general  assembly  such  acts,  laws,  and  ordi- 
nances as  may  tend  to  establish  the  people  in  obedience 
to  the  king's  authority,  preserve  due  peace  and  good 
government,  protect  them  from  their  enemies,  and 
enable  them  to  raise  taxes  for  the  support  of  govern- 
ment This  was  certainly  something  in  the  nature  of  a 
president's  message,  an  idea  afterwards  worked  out  in 
the  New  York  constitution  of  i  'j'j'j  and  adopted  in  the 
National  Constitution. 

Our  next  document,  the  Pennsylvania  frame  of 
1682-83,  is  more  mature  than  the  commission  for 
New  Hampshire.  It  preserves  the  forms  as  developed 
out  of  the  trading  charters  of  Virginia  and  New  Eng- 
land, and  adds  to  them  some  striking  developments. 
It  is  especially  worthy  of  notice  because  it  is  the  second 
advanced  frame  of  government  that  was  made  exclusively 
on  American  soil.  The  Connecticut  Fundamental  Orders 
of  1638  is  the  first  document  of  this  sort,  as  already 
shown,  but  it  merely  copied  the  Massachusetts  form, 
with  a  slight  advance  upon  it     The  Pennsylvania  frame, 

56 


Colonial  Charters  and  Constitutions 

as  being  more  fully  developed,  is  more  significant  and 
interesting.  It  was  made  by  William  Penn  and  his 
colonists  under  that  clause  in  the  grant  to  Penn  which 
allowed  him  to  make  laws  "by  and  with  the  advice, 
assent,  and  approbation  of  the  freemen."  The  clause 
did  not  tell  him  that  he  and  the  freemen  might  make  a 
constitution  ;  it  simply  said  laws ;  and  it  shows  the  in- 
stincts of  the  race  that  Penn  and  his  people  inferred 
that  under  this  they  must  first  of  all  make  an  organic 
law,  a  fundamental  order,  or,  more  briefly,  a  constitu- 
tion. 

There  was  no  royal  influence  affecting  the  making  of 
this  constitution.  No  officer  of  the  Crown  was  present, 
or  had  a  right  to  be  present  Both  Penn  and  his  people 
were  standing  on  the  soil  of  Pennsylvania,  and  could  do 
as  they  pleased.  That,  under  the  circumstances,  they 
framed  a  government  which  followed  the  line  of  develop- 
ment in  other  colonies,  and  advanced  on  it  a  little,  shows 
that  the  royal  charters  heretofore  discussed  were  not 
entirely  the  result  of  mere  Crown  influence,  but  were 
largely  what  the  colonists  themselves  desired  and  had 
suggested. 

The  constitution  begins  with  a  preamble  on  the  nature 
of  government  which  has  been  generally  supposed  to 
contain  Penn's  own  ideas  on  the  subject  Government, 
he  said,  was  of  divine  origin  and  a  part  of  religion. 
There  were  many  theories  of  it  current ;  but  the  actual 
practice  was  a  different  and  also  a  very  difficult  matter, 
because  the  government  must  be  suited  to  its  people  and 
locality.  This  was  certainly  very  Saxon  ;  and  then  he 
adds  a  sentence  which  has  been  often  quoted : 

57 


Evolution  of  the  Constitution 

"  Any  government  is  free  to  the  people  under  it  (whatever  be 
the  frame)  where  the  laws  rule  and  the  people  are  a  party  to  those 
laws,  and  more  than  this  is  tyranny,  oligarchy,  or  confusion." 

Governments,  he  went  on,  depended  on  men  rather 
than  men  on  governments  ;  and  an  ill-framed  govern- 
ment in  good  hands  might  be  quite  successful.  After 
all,  the  great  end  was  "  to  support  power  in  reverence 
with  the  people,  and  to  secure  the  people  from  the  abuse 
of  power." 

All  this  was  much  better  theorizing  than  anything 
Locke  had  said  in  his  constitution.  Penn  was  one  of 
the  most  accomplished  men  of  his  time,  and,  though 
not  a  metaphysician,  was  as  competent  as  Locke  to 
draw  up  an  ideal  political  dream.  But  he  started  on 
the  established  forms,  and,  while  he  made  some  impor- 
tant developments,  kept  well  within  legitimate  lines  and 
swerved  comparatively  little  from  the  normal. 

As  we  read  along  in  his  constitution  we  find  a  gov- 
ernor, a  governor's  council,  and  an  assembly  of  the 
people,  just  as  in  the  constitutions  developed  in  New 
England  and  East  Jersey.  The  people  were  to  elect 
the  council,  as  in  the  New  England  charters,  and  it  is 
called  the  provincial  council. 

The  variations  on  the  New  England  type  were,  first 
of  all,  that  the  council  was  to  be  very  large  and  contain 
seventy-two  members.  In  the  other  colonies  the  as- 
sistants or  council  were  seldom  more  than  ten  or  twenty 
in  number.  This  enlargement  of  the  council  shows  at 
once  a  tendency  to  develop  it  into  an  upper  house  of 
the  legislature,  and  this  is  confirmed  when  we  find  that 
the  council  is  to  originate  all  legislation,  and  that  the 

58 


Colonial  Charters  and  Constitutions 

assembly  is  merely  to  accept  or  reject  the  proposals  of 
the  council.  In  this  idea  of  developing  the  council  into 
an  upper  legislative  house  of  such  importance  that  the 
lower  house  would  be  completely  dwarfed  and  insig- 
nificant, Penn  seems  to  have  been  influenced  by  Locke's 
constitution. 

It  may  be  added  that  this  sudden  attempt  to  develop 
a  second  house  and  develop  it  excessively  was  very  much 
in  advance  of  the  time.  Not  only  was  Penn's  whole 
arrangement  in  this  respect  changed  and  the  legislative 
department  put  back  in  its  normal  colonial  state,  but 
Pennsylvania  continued  to  have  a  single-branch  legisla- 
ture until  long  after  the  Revolution. 

In  developing  the  council  so  excessively  Penn  natu- 
rally gave  to  it  the  power  to  create  courts  of  law,  which 
in  the  other  governments  was  usually  given  to  the  gen- 
eral assembly.  He  also  gave  to  it  the  power  to  enter 
judgments  on  impeachments, — that  is  to  say,  the  right 
to  try  impeachments, — which  were  to  be  originated  and 
prosecuted  by  the  assembly,  or  lower  house.  Previously 
the  right  to  remove  officials  had  been  given  in  a  general 
way  to  the  general  assembly  by  the  Fundamental  Orders 
of  Connecticut  of  1638,  the  charter  of  Connecticut  of 
1662,  and  the  charter  of  Rhode  Island  of  1663,  and  ap- 
parentiy  the  general  assembly  was  to  try  as  well  as  to 
charge  and  accuse  the  culprit  The  word  impeachment 
was  not  used,  and  it  is  found  in  this  Pennsylvania  frame 
of  1683  for  the  first  time. 

In  this  frame  the  dividing  up  of  the  work  of  impeach- 
ment as  it  appears  in  the  National  Constitution  is  found 
for  the  first  time.     The  general  assembly  was  to  bring 

59 


Evolution  of  the  Constitution 

the  impeachment,  and  the  council  was  to  try  it  and  decide 
on  guilt  or  acquittal.  It  was  the  natural  result  of  the 
provision  for  a  double  legislature,  and  shows  the  gradual 
working  out  of  a  more  detailed  political  form.  When 
double  legislatures  were  finally  adopted  in  the  Revo- 
lution this  arrangement  for  impeachment  accompanied 
them  and  was  reproduced  in  the  National  Constitution. 

The  executive  part  of  Penn's  government  was  worked 
out  with  considerable  detail.  The  governor  and  his 
council  were  to  have  care  of  the  peace  and  safety,  lay 
out  towns,  model  public  buildings,  inspect  the  treasury, 
and  establish  schools.  The  governor  was  to  preside  at  the 
council  meetings  and  have  a  treble  vote.  This  treble 
vote  was  probably  some  pet  idea  of  Penn's. 

But  the  most  striking  part  about  this  description  of 
executive  duties  is  a  sentence  which  sums  them  up  in  a 
general  way : 

"The  governor  and  provincial  council  shall  take  care  that  all 
laws  (statutes  and  ordinances  which  shall  at  any  time  be  made 
within  the  said  province)  be  duly  and  diligently  executed." 

This  clause,  shortened  by  omitting  the  part  in  paren- 
thesis, which  is  mere  surplusage,  was  adopted  with  little 
or  no  change  in  the  constitutions  of  1776,  and  finally 
appeared  in  the  National  Constitution  as  a  summing  up 
of  the  executive  duties  of  the  President  in  the  phrase, 
"  He  shall  take  care  that  the  laws  be  faithfully  executed." 

The  germ  of  this  clause  had  appeared  in  the  Massa- 
chusetts charter  of  1629,  in  a  sentence  which  said  not 
that  any  particular  person  or  department  should  execute 
the  laws,  but  simply  that  all  the  laws  should  be  "  duly 

60 


Colonial  Charters  and  Constitutions 

observed,  kept,  performed,  and  put  in  execution."  The 
Maryland  charter  of  1632  assigned  to  Lord  Baltimore 
the  duty  of  executing  the  laws,  and  in  the  Fundamental 
Orders  of  Connecticut  of  1638  and  the  Concessions  of 
East  Jersey  of  1665  the  duty  is  assigned  to  the  governor. 
The  first  step  out  of  corporation  forms  was  to  say,  with 
more  words  than  were  necessary,  that  all  the  laws  should 
be  kept,  performed,  and  executed.  The  next  step  was 
to  assign  their  execution  to  a  particular  department,  still 
using  more  words  than  were  necessary.  The  duty  and 
the  person  to  perform  it  being  now  defined,  we  find  in  the 
constitutions  of  1 776  that  the  language  for  expressing  it 
is  much  abbreviated,  until  in  the  National  Constitution  it 
reaches  complete  condensation  in  the  simple  phrase, 
which  covers  everything,  "  He  shall  take  care  that  the 
laws  be  faithfully  executed." 

There  was  also  an  interesting  clause  providing  a  way 
for  amending  the  constitution.  It  could  be  done  by  the 
consent  of  the  governor  and  six  parts  in  seven  of  the 
council  and  assembly.  Locke  had  provided  that  his 
constitution  should  never  be  altered,  and  other  charters 
and  constitutions  had  been  silent  on  the  subject,  though, 
of  course,  it  was  generally  understood  that  they  could  be 
changed  by  the  authority  that  had  made  them.  But 
this  provision  in  Penn's  constitution  was  the  first  appear- 
ance in  American  governments  of  any  definite  way  of 
amending.  It  was  repeated  with  various  changes  in 
the  constitutions  of  1776,  until  the  way  now  found  in 
the  National  Constitution  was  reached. 

Annexed  to  Penn's  frame  are  "  Laws  Agreed  upon 
in  England,"  many  of  which  are  what  afterwards  became 

61 


Evolution  of  the  Constitution 

known  as  bill-of-rights  provisions,  such  as  fair  trial  by 
jury,  process  to  be  in  English,  fees  and  fines  to  be 
moderate.  We  have  already  observed  the  first  bill  of 
rights  of  this  kind  starting  in  the  Concessions  of  West 
Jersey,  and  the  bill  we  find  in  Penn's  frame  is  simply  a 
development,  with  a  few  provisions  added. 

Penn's  frame  was  amended,  a  few  months  after  it  was 
passed,  by  reducing  the  provincial  council  from  seventy- 
two  to  eighteen  members,  and  by  adding  that  the  gov- 
ernor must  act  "  by  and  with  the  advice  and  consent 
of"  the  provincial  council, — peculiar  words,  which  have 
appeared  several  times,  which  seem  to  have  been  used 
in  old  trading-corporation  charters,  for  they  can  be 
found  in  the  charter  of  the  Grocers'  Company  granted 
in  1429,  and  which,  after  being  repeated  all  through 
the  colonial  charters  and  the  constitutions  of  i  '^'](>,  took 
their  place  in  the  National  Constitution. 

We  must  now  consider  the  next  charter  in  chrono- 
logical order, — the  second  Massachusetts  charter  of 
1 69 1.  The  Puritans  had  created  under  their  first  charter 
a  government  so  free  and  independent,  and  had  assumed 
so  many  of  the  attributes  of  sovereignty,  coining  their 
own  money  and  cutting  the  cross  out  of  the  English 
ensign,  that  they  needed  looking  after.  Soon  after 
Charles  II.  came  to  the  throne  he  became  convinced 
that  all  the  colonies  required  a  little  overhauling,  Mas- 
sachusetts most  of  all.  It  would  be  well,  he  thought, 
to  hold  dissenters  like  the  Puritans  with  a  somewhat 
stronger  hand.  Proceedings  were  begun  to  annul  the 
Massachusetts  charter,  and  they  were  consummated 
June  18,  1684. 

62 


Colonial  Charters  and  Constitutions 

For  some  years  Massachusetts  had  no  charter,  and  was 
under  direct  royal  rule,  with  a  governor  appointed  by 
the  Crown.  But  in  1691  Mary  and  William  granted  a 
new  charter,  which  embodied  some  of  the  developments 
we  have  seen  in  the  otl]er  colonies.  The  people  appear 
to  have  had  some  voice  in  shaping  it,  for  they  had  their 
agents  in  England. 

This  charter  of  1 691  provided  that  there  should  be  a 
governor,  a  deputy  governor,  and  a  secretary,  all  ap- 
pointed by  the  Crown,  and  not  elected  by  the  people 
as  in  the  old  charter.  The  people  were  allowed  to 
elect  the  members  of  a  legislature  called  the  house  of 
freeholders.  There  were  to  be  twenty-eight  assistants 
elected  by  the  general  assembly,  which  was  to  consist 
of  the  governor,  the  assistants,  and  the  house  of  free- 
holders, all  sitting  together. 

The  twenty-eight  assistants  were  the  most  interesting 
feature  of  the  government,  for  they  were  to  be  chosen 
to  represent  different  localities  of  the  colony,  very 
much  as  senators  are  now  chosen  under  our  National 
Constitution.  The  province  of  Massachusetts,  under 
this  charter  of  1691,  was  a  union  of  the  old  province  of 
that  name  with  New  Plymouth,  Maine,  and  the  land  be- 
tween the  Sagadahoc  River  and  Nova  Scotia ;  and  it  is 
very  significant  that  each  of  these  divisions  is  given  its 
representatives  in  the  council,  or  assistants,  as  they  were 
called,  which  afterwards  developed  into  the  Senate  of 
the  national  government  and  represented  the  States. 
The  union  under  the  Massachusetts  charter  was  a  union 
of  provinces  which  had  been  formerly,  in  a  certain  sense, 
distinct  sovereignties,  as  the  States  which  formed  the 

63 


Evolution  of  the  Constitution 

Union  under  the  National  Constitution  had  been  dis- 
tinct sovereignties.  It  is  certainly  remarkable  that  the 
Massachusetts  union  should  have  foreshadowed  the 
National  Union  in  its  method  of  giving  representation 
to  the  provinces  of  which  it  was  composed. 

It  is  another  instance  to  show  how  the  natural  condi- 
tions in  America  were  of  their  own  inherent  force,  and 
without  imitation,  constantly  tending  towards  the  form 
of  government  that  was  finally  reached.  It  shows,  also, 
that,  in  the  forms  which  were  gradually  adopted,  there 
was  no  thought  of  imitating  anything  in  the  British  Con- 
stitution. The  framers  of  the  Massachusetts  charter,  in 
advancing  the  governor's  council  to  the  function  of  rep- 
resenting the  separate  provinces  of  a  union,  were  cer- 
tainly not  imitating  the  House  of  Lords,  for  that  body 
had  no  such  function.  They  were  merely  conforming 
to  natural  conditions,  using  what  had  already  proved 
itself  suitable  for  certain  purposes,  and  adapting  means 
to  ends  in  a  very  practical  manner. 

The  confusion  of  legislative,  executive,  and  judicial 
functions  was  rather  worse  than  usual  in  this  Massachu- 
setts charter,  for  not  only  were  the  governor  and  the 
assistants  part  of  the  general  assembly,  but  the  governor 
and  assistants  were  also  to  act  as  a  court  to  probate  wills 
and  grant  letters  of  administration. 

By  another  provision,  the  governor,  "  with  the  advice 
and  consent  of"  the  assistants,  appointed  judges,  sher- 
iffs, marshals,  and  other  officers,  which  was  an  appoint- 
ing power  similar  to  that  of  the  President  and  Senate 
under  the  Constitution.  The  governor  had  also  an  ab- 
solute veto  on  all  the  bills  passed  by  the  general  court 

64 


Colonial  Charters  and  Constitutions 

The  veto  power  is  now  clearly  established  in  American 
governments.  While  showing  one  remarkable  advance, 
this  charter  also  contained  the  most  important  and  best- 
tested  provisions  of  previous  experience. 

There  was  one  provision,  however,  of  a  peculiar  char- 
acter, and  the  result  of  the  more  stringent  policy  of 
colonial  control  which  Charles  II.  had  started.  The 
governor  had  power  to  dissolve  the  assembly  whenever 
he  chose.  By  an  amendment  to  the  charter  in  1726 
the  representatives  could  adjourn  from  day  to  day,  and 
for  a  period  of  two  days,  but  not  longer  without  the 
consent  of  the  governor.  This  power  of  the  governors 
over  the  popular  assemblies  seems  to  have  existed  after 
the  year  1701  in  most  of  the  colonies  except  Pennsyl- 
vania, and  was  always  bitterly  resented  by  the  people. 
But  in  the  end  it  proved  to  be  a  source  of  constitutional 
development ;  for  their  long  experience  with  it  led  to 
a  very  careful  framing  of  the  powers  of  the  President 
over  Congress. 

We  now  come  to  two  frames  of  government  in  Penn- 
sylvania which  may  be  considered  together, — the  frame 
of  1696,  usually  known  as  Markham's  frame,  and  the 
Charter  of  Privileges  of  1701,  usually  known  as  the 
constitution  of  1701.  The  frame  of  1696  is  noticeable 
chiefly  for  its  reactionary  tendency.  It  reduced  to  a 
normal  condition  Penn's  frame  of  1683,  which,  as  we 
have  seen,  was  excessively  developed,— developed,  in 
fact,  far  beyond  any  other  colonial  constitution. 

The  frame  of  1696  was  made  by  Governor  Markham 
and  the  people  during  Penn's  absence,  and  was  to  re- 
main in  force  unless  Penn  should  object  to  it  The 
5  6S 


Evolution  of  the  Constitution 

principal  feature  of  it  was  that  the  right  to  originate 
legislation  was  taken  away  from  the  council  and  given 
to  the  assembly.  Thus  this  strange  idea  of  creating  an 
upper  house  which  alone  could  originate  laws,  which 
had  been  a  mere  freak  of  Locke's  and  Penn's,  was  done 
away  with  forever  in  American  governments. 

A  few  years  after  this  frame  of  Markham's  Penn  re- 
turned to  the  province,  and  in  1701,  after  much  con- 
sultation with  the  people  and  repeated  discussions  and 
meetings,  gave  them  the  constitution  of  1701,  always 
regarded  in  Pennsylvania  as  a  very  good  one,  and  under 
it  the  people  lived  until  the  Revolution. 

It  also  was  reactionary,  and,  as  often  happens  when 
there  has  been  excessive  action,  the  reaction  was  ex- 
cessive. Penn  had  attempted  in  his  first  frame  to 
develop  the  council  into  a  second  house  of  legislature, 
and  developed  it  too  much.  In  the  constitution  of 
1 70 1  he  went  to  the  other  extreme  and  abolished  the 
council  altogether.  There  was  to  be  merely  a  governor 
appointed  by  himself  and  an  assembly  elected  by  the 
people. 

The  assembly  was  allowed  to  control  its  own  adjourn- 
ments without  interference  from  the  governor, — a  right 
of  which  the  Pennsylvanians  were  always  very  proud, — 
and  they  maintained  it  unimpaired  down  to  the  Revo- 
lution. 

The  assembly  was  also  allowed  to  impeach  officials 
and  have  all  the  power  of  an  assembly  according  to  the 
rights  of  freeborn  subjects  of  England.  In  after-years, 
in  its  contests  with  the  governor,  the  assembly  relied  on 
this  clause  to  give  it  all  the  privileges  of  the  British 

66 


Colonial  Charters  and  Constitutions 

House  of  Commons.  Some  of  the  members  became 
very  learned  in  English  parliamentary  history,  and  their 
minutes  are  full  of  evidences  of  it 

Some  new  bill-of-rights  provisions  appear  in  this 
constitution,  and  some  of  the  privileges  given  to  the 
assembly  were  also  distinct  developments  and  became 
permanently  embodied  in  American  constitutional  forms. 
The  assembly  was  told  that  it  could  choose  its  own 
speaker  and  officers  and  "be  judge  of  the  qualifications 
and  elections  of  its  own  members."  This  right  and  the 
very  words  in  which  it  was  given  were  repeated  in  the 
constitutions  of  1776  and  appeared  in  the  National 
Constitution. 

Penn's  excessive  reaction  in  abolishing  the  council 
was  corrected  in  a  curious  way,  which  shows  how 
natural  that  body  was  to  the  colonial  governments. 
The  constitution  did  not  provide  for  the  election  or 
appointment  of  a  council,  but  a  council  was  incidentally 
referred  to  in  a  clause  which  said  that  no  person  should 
be  obliged  to  answer  before  the  governor  and  council, 
or  in  any  other  place  than  an  ordinary  court  of  justice, 
unless  appeals  to  the  governor  and  council  should  be 
established  by  law. 

It  is  difficult  to  understand  why  this  strange  side-refer- 
ence to  a  council  should  have  been  put  in  unless  it  was 
the  result  of  carelessness  and  haste  in  having  the  con- 
stitution quickly  adopted  on  the  eve  of  Penn's  hurried 
return  to  England.  At  any  rate,  it  was  not  long  before 
Penn  began  appointing  a  council  to  assist  the  governor, 
and  his  heirs  continued  the  practice.  The  assembly  from 
time  to  time  protested,  and  appealed  to  the  constitution 

67 


Evolution  of  the  Constitution 

as  not  authorizing  a  council  in  any  way.  But  the  council 
was  always  appointed,  and  maintained  its  position  as  a 
de  facto  if  not  a  de  jure  part  of  the  government. 

It  acquired  in  time  almost  the  same  function  as  an 
upper  house  of  legislature,  because  it  would"  advise  the 
governor  to  veto  the  bills  of  the  assembly,  and  the 
governor  was  under  instructions  from  the  proprietors  to 
be  guided  by  the  council.  This,  the  assembly  always 
declared,  was  an  outrageous  violation  of  its  rights,  be- 
cause the  constitution  provided  for  only  a  single  legis- 
lative body^  and  by  the  instructions  to  the  governor  and 
the  appointment  of  the  council  a  second  house  of  legis- 
lature, unknown  to  the  constitution,  was  forced  upon  the 
people.  But  it  all  shows  how  inevitable  was  the  de- 
velopment towards  a  second  house. 

Our  last  charter  is  that  of  Georgia,  granted  in  1732. 
We  should  naturally  expect  it  to  show  remarkable 
developments,  but,  owing  to  peculiar  circumstances,  it 
does  not  It  differed  from  all  the  other  colonial  charters 
and  constitutions,  and  was  neither  the  charter  of  a  trading 
company  nor  the  constitution  of  a  people,  but  a  chari- 
table trust  or  eleemosynary  corporation.  General  Ogle- 
thorpe and  some  other  good  people  wished  to  relieve 
the  debtor  prisons  of  England,  and  adopted  the  plan, 
by  no  means  yet  obsolete  in  Europe,  of  dumping  their 
contents  on  America. 

A  grant  of  land  was  obtained,  and  the  company  was 
called  the  **  Trustees  for  Establishing  the  Colony  of  Geor- 
gia in  America,"  The  trustees  were  in  the  first  instance 
to  appoint  the  common  council,  and  as  vacancies  oc- 
curred in  this  council,  by  death  or  resignation,  the  mem- 

68 


Colonial  Charters  and  Constitutions 

bers  of  the  company  could  elect  persons  to  fill  them. 
The  members  of  the  company  were  to  make  rules  and 
laws,  to  be  approved  by  the  Crown.  The  common  coun- 
cil was  to  carry  on  the  business  affairs  ot  the  company 
and  appoint  judges,  treasurers,  secretaries,  governors, 
and  such  other  officers  as  should  be  found  necessary, 
and  to  apportion  land  among  the  debtors,  but  not  to 
any  members  of  the  company. 

There  is  always  some  contribution  towards  develop- 
ment in  the  crudest  and  most  reactionary  document ; 
so  in  this  one  we  find  the  first  attempt  to  separate  the 
departments  of  government  in  a  clause  providing  that 
no  person  holding  an  office  of  profit  under  the  corpo- 
ration should  be  a  member  of  the  corporation. 

The  corporation  was  to  remain  in  existence  twenty- 
one  years,  and  in  that  time  could  establish  courts  of 
law.  But  the  command  of  the  militia  was  given  to  the 
governor  of  South  Carolina.  At  the  expiration  of  the 
twenty-one  years  such  form  of  government  could  be  es- 
tablished as  the  Crown  should  think  best 

The  scheme  was  not  successful,  and  when  the  twenty- 
one  years  expired  the  trustees  were  glad  to  surrender. 
Soon  after  1751  the  Crown  organized  a  government 
which  resembled  those  of  the  other  colonies,  which 
have  been  already  described.  There  were  a  governor,  a 
council, — which  seems  to  have  sat  as  an  upper  house, — 
and  an  assembly,  and  the  governor  and  ,  council  sat 
together  as  a  court  of  chancery  and  admiralty. 


69 


CHAPTER    III. 

THE    CONSTITUTIONS   OF    1 776. 

The  Georgia  charter  of  1732,  discussed  in  the  pre- 
ceding chapter,  may  very  well  be  omitted  from  our  con- 
sideration, for  it  was  not  in  the  line  of  development  of 
the  other  governments.  Its  peculiar  feature  of  creating 
a  charity  organization  sets  it  completely  aside. 

This  gives  us  the  Pennsylvania  constitution  of  170 1  as 
the  last  written  frame  of  government  that  appeared  in 
colonial  times.  The  three  Pennsylvania  constitutions 
taken  together, — of  1683,  of  1696,  and  of  1701, — with 
their  amendments,  and  the  Massachusetts  charter  of 
1 69 1,  constitute  the  most  advanced  colonial  forms,  and 
show  the  nearest  approach  in  the  colonial  period  towards 
the  final  goal  of  the  national  document 

By  about  the  year  1700  the  colonial  governments 
seem  to  have  all  reached  a  stage  of  development  which 
was  sufficient  for  practical  purposes.  They  had  partially 
emerged  out  of  the  trading-company  forms,  and  usually 
consisted  of  a  governor,  a  governor's  council,  and  a 
single-branch  legislature,  with  a  tendency  on  the  part 
of  the  council  to  develop  into  an  upper  house  of  legis- 
lature, and  one  or  two  of  the  colonies  had  an  upper 
house.  Besides  this,  several  of  them  had  a  few  of  the 
bill-of-rights  provisions,  which  were  afterwards  much 
extended,  and  most  of  them  had  pecuHar  arrangements 

70 


The  Constitutions  of  1776 

or  peculiarly  worded  sentences,  which  afterwards  ap- 
peared in  the  National  Constitution. 

This  development  was  sufficient  for  the  needs  of  the 
time,  and  in  the  seventy-five  years  that  passed  between 
the  year  1 700  and  the  outbreak  of  the  Revolution  there 
was  little  or  no  advancement  that  can  be  traced  in  docu- 
ments or  writings.  No  doubt  the  colonists  discussed 
the  subject,  for  while  some  of  the  colonies,  like  Con- 
necticut and  Rhode  Island,  which  elected  their  own 
governors,  were  well  content,  others,  like  Massachusetts, 
which  were  under  royal  governors,  saw  many  things  in 
their  forms  of  government  that  they  would  have  liked  to 
change.  It  was  in  this  long  period  of  apparent  silence 
and  inaction  that  it  was  gradually  seen  that  the  confusion 
of  departments  which  prevailed  in  all  the  governments 
was  a  mistake. 

But  it  was  not  until  the  year  1776,  when  all  the  colo- 
nies except  Rhode  Island  and  Connecticut  set  actively 
to  work  to  make  new  constitutions  for  themselves,  en- 
tirely free  from  any  influence  from  the  Crown,  that  there 
was  developed  any  intensity  of  thought  upon  the  subject 
In  that  year  there  was  certainly  a  great  school  of  consti- 
tution-making at  work,  and  the  comparison  of  ideas  and 
conflict  of  opinion  were  a  lesson  and  discipline  in  funda- 
mental principles  such  as  have  never  been  known  in 
America  in  any  one  year  before  or  since. 

Judging  by  the  first  constitution  which  was  made  at 
that  time,  the  development  in  the  subject  since  the  year 
1700  had  been  very  slight  This  first  constitution  was 
that  of  New  Hampshire,  The  work  on  it  was  begun 
December  21,  1775,  and  finished  January  5,  1776.     It 

71 


Evolution  of  the  Constitution 

was  finished  several  months  before  any  of  the  others 
were  begun.  There  were  no  guides  for  it  except  the 
old  colonial  charters  and  constitutions,  most  of  which 
had  been  made  in  the  previous  century,  and  it  is  not 
surprising  that  we  find  it  a  very  crude  instrument 

The  province  is  still  called  a  colony,  and  the  consti- 
tution is  to  continue  in  force  only  "  during  the  present 
unhappy  and  unnatural  contest  with  Great  Britain." 
The  convention  which  framed  it  was  elected  by  the  peo- 
ple and  called  a  "Congress."  The  constitution  begins 
by  providing  that  this  Congress  is  to  become  the  House 
of  Representatives  of  the  new  government,  and  is  to 
choose  twelve  persons,  taking  them  from  different  coun- 
ties, to  be  a  distinct  and  separate  branch  of  the  legisla- 
ture by  the  name  of  a  "Council  for  the  Colony." 

If,  however,  the  war  should  last  longer  than  a  year, 
this  council  was  to  be  elected  by  the  people,  each  county 
electing  its  proportion.  The  council  was  to  appoint  its 
own  president,  and  both  branches  of  the  legislature 
must  agree  to  every  act  before  it  could  become  a  law. 
Neither  branch  could  adjourn  longer  than  from  Saturday 
to  Monday  without  the  consent  of  the  other.  Money- 
bills  must  originate  in  the  lower  house.  Both  houses 
together  were  to  appoint  all  public  officers,  including 
the  general  field  officers  of  the  militia.  The  office  of 
governor  was  not  provided  for. 

This  was  certainly,  in  some  respects,  a  crude  instru- 
ment The  absence  of  a  governor  and  the  appointment 
of  all  public  oflficers  by  the  legislature  was  barbarous. 
But  still  it  adopts  the  idea  of  a  double-branch  legislature, 
which,  as  we  have  seen,  had  been  gaining  ground  all 

72 


The  Constitutions  of  1776 

through  the  colonial  period  ;  and,  like  the  Massachusetts 
charter  of  1691,  it  assigns  to  the  upper  branch  the  func- 
tion of  representing  certain  localities, — the  counties, — 
in  which  we  see  the  germ  of  the  United  States  Senate's 
representation  of  States. 

The  provision  that  money-bills  must  originate  in  the 
lower  house  was,  of  course,  familiar  English  parlia- 
mentary law,  and  was  also  a  principle  that  had  been 
successfully  contended  for  in  the  colonial  assembly  of 
Pennsylvania,  but  had  never  appeared  before  in  an 
American  written  frame  of  government 

The  clause  which  says  "  neither  branch  shall  adjourn 
for  any  longer  time  than  from  Saturday  until  the  next 
Monday  without  the  consent  of  the  other"  was  repeated 
in  various  forms  in  the  other  constitutions,  until  we  find 
it  in  the  National  Constitution  in  the  form,  "  Neither 
house,  during  the  session  of  Congress,  shall,  without  the 
consent  of  the  other,  adjourn  for  more  than  three  days." 

South  Carolina  came  next,  and  her  constitution  was 
finished  March  26,  1 776.  This  was  before  any  of  the 
others  had  been  begun  except  New  Hampshire  :  so  New 
Hampshire's  document  was  the  only  guide,  and  it  was 
followed  quite  closely. 

The  convention,  or  provincial  congress,  as  it  was 
called,  resolved  itself  into  the  general  assembly,  or  lower 
house,  of  the  new  government,  and,  after  October  21, 
1776,  was  to  be  elected  by  the  people.  As  in  New 
Hampshire,  the  lower  house  was  at  first  to  choose  the 
upper  house,  which  was  to  be  called  the  legislative 
council  and  be  composed  of  thirteen  members. 

Here  the  resemblance  to  New  Hampshire's  constitu- 

73 


Evolution  of  the  Constitution 

tion  stops,  for  South  Carolina  is  to  have  a  governor  called 
"President  and  Commander-in-Chief ;"  and  this  is  the 
first  use  of  the  term  president  to  describe  the  executive 
in  the  constitutions  of  1776.  There  are  also  to  be  a 
vice-president,  and  a  privy  council  composed  of  the 
vice-president  and  six  others,  three  from  the  assembly 
and  three  from  the  legislative  council. 

This  privy  council  is  to  advise  the  president,  when 
required,  and  was,  no  doubt,  copied  from  or  suggested 
by  the  privy  council  of  the  English  king.  As  the  gov- 
ernor's council  of  colonial  times  had  passed  into  an 
upper  house  of  legislature,  it  may  have  been  thought 
necessary  to  supply  its  place  by  this  privy  council.  It 
may  also  have  been  the  mere  personal  suggestion  of 
William  Henry  Drayton,  who  had  great  influence  in  the 
draughting  of  the  constitution. 

Some  of  the  later  constitutions  of  1776  adopted  this 
privy  council,  and  added  details  for  keeping  a  written 
register  of  its  advice  and  opinions  which  should  always 
be  open  to  inspection.  This  is,  I  think,  one  of  the  few 
instances  that  can  be  found  of  a  direct  imitation  of  a 
foreign  form ;  and  it  is  to  be  observed  that  it  is  an 
imitation  that  failed.  It  was  tried  for  a  few  years  in 
several  of  the  States  and  then  abandoned.  In  future 
chapters  we  shall  find  other  instances  of  this  same  fate 
befalling  imitations,  and  it  goes  to  show  that  foreign 
imitations  or  plagiarisms  in  constitution-making  are  not 
only  few,  but  also  usually  unsuccessful. 

The  president,  in  the  South  Carolina  constitution,  was 
given  an  absolute  veto.  He  could  not,  however,  ad- 
journ or  dissolve  the  legislature,  though  he  might  call 

74 


The  Constitutions  of  1776 

them  before  the  time  to  which  they  stood  adjourned. 
The  advance  here  is  evident,  and  requires  no  comment 
But  the  confusion  of  departments  in  the  vice-president 
and  privy  council  forming  a  court  of  chancery  was 
gross. 

Virginia's  constitution  was  finished  June  29,  1776, — a 
few  months  after  South  CaroHna's.  It  was  made  by  a 
convention  of  forty-five  members  of  the  house  of  bur- 
gesses, and  has  prefixed  to  it  a  bill  of  rights  adopted 
June  12,  1776,  the  first  part  of  which  has  the  language 
of  the  opening  paragraph  of  the  Declaration  of  Inde- 
pendence. The  rest  of  the  bill  of  rights  is  remarkable 
as  being  very  full  and  complete  and  containing  more 
provisions  than  had  ever  appeared  before  in  the  colo- 
nies. Besides  the  ordinary  bill-of-rights  provisions,  the 
bill  contains  some  political  maxims,  and  among  these  is 
the  first  statement  in  our  constitutions  of  the  principle 
that  the  legislative,  executive,  and  judicial  departments 
of  government  should  be  separate,  and  that  the  same 
persons  should  never  exercise  the  powers  of  any  two  of 
them. 

When  we  come  to  the  constitution  itself,  we  find  it 
repeats  the  statement  of  the  necessity  of  keeping  the 
departments  separate.  The  legislature  is  to  consist  of 
two  houses, — a  lower  house,  called  the  house  of  dele- 
gates, and  an  upper  house,  called  the  senate  ;  and  this  is 
the  first  time  the  upper  house  is  called  a  senate.  As  it 
was  emerging  from  the  condition  of  a  governor's  council, 
it  was  called,  as  in  the  New  Hampshire  constitution,  a 
legislative  council.  But  now  it  has  become  a  legislative 
body  in  the  full  sense  of  the  term,  and  is  given  an  ap- 

75 


Evolution  of  the  Constitution 

propriate  name.  It  is  also  representative  of  large  dis- 
tricts or  localities,  as  in  the  New  Hampshire  constitu- 
tion. 

Both  the  senate  and  the  lower  house  are  given  power 
to  choose  their  own  speaker,  appoint  their  own  officers, 
and  settle  their  own  rules  of  proceeding.  In  subse- 
quent constitutions  we  find  this  power  given  in  very 
much  the  same  words,  with  the  addition  that  each  house 
is  to  determine  the  elections  and  qualifications  of  its 
own  members,  and  these  phrases  are  repeated  until  they 
appear  in  the  National  Constitution. 

All  laws  are  to  originate  in  the  lower  house,  and  the 
senate  can  only  reject  or  approve,  or  amend  with  con- 
sent of  the  lower  house.  Money-bills,  however,  cannot 
be  amended  by  the  senate,  but  can  only  be  rejected  or 
approved.  The  lower  house  has  the  right  to  impeach, 
and  the  impeachments  are  to  be  tried  not  by  the  sen- 
ate, but  by  a  court. 

This  rather  excessive  privilege  of  the  lower  house 
alone  having  the  right  to  originate  legislation  was  a  mere 
freak,  which  was  not  followed  by  the  other  States. 

The  governor  is  to  be  elected  by  joint  ballot  of  the 
two  houses,  and  is  given  the  pardoning  power,  but  not 
the  veto  power.  He  cannot  adjourn  the  legislature,  but 
can  call  them  before  the  time  to  which  they  stand  ad- 
journed. He  has  to  assist  him  a  privy  council  of  eight, 
chosen  by  joint  ballot  of  both  houses  from  their  own 
members  or  from  the  people.  The  council  is  to  choose 
a  president,  who  shall  be  the  lieutenant-governor,  and 
the  proceedings  of  the  council  in  giving  advice  to  the 
governor  and  other  matters  are  to  be  entered  in  a  book 

76 


The  Constitutions  of  1776 

and  signed  by  the  members.  Any  member  has  the  privi-"' 
lege  of  dissenting  from  any  act  of  the  council  and  enter- 
ing his  dissent  in  the  book,  and  the  book  is  to  be  always 
open  to  inspection  by  the  legislature. 

Subsequent  constitutions  in  the  other  States  copied 
this  provision  for  the  record-book  of  the  council,  and  an 
unsuccessful  effort  was  made  to  have  a  council  of  this 
sort  in  the  National  Constitution.  But  this  imitation  of 
the  British  privy  council  failed  at  every  point,  and  was 
soon  abandoned  by  the  States  that  had  adopted  it 

The  New  Jersey  constitution  was  begun  on  May  26 
and  finished  July  3,  1776.  This  was  the  first  of  the 
constitutions  of  1776  that  was  submitted  to  the  people 
for  their  approval.  The  others  had  all  been  prepared* 
and  put  in  force  by  the  conventions  which  framed  them. 

The  New  Jersey  document  was  made  about  contem- 
poraneously with  the  constitution  of  Virginia,  and  shows 
a  strong  resemblance  to  it  The  legislature  is  to  have 
two  branches, — an  assembly  and  a  legislative  council, — 
and  the  two  branches  are  to  elect  the  governor  by  joint 
ballot,  as  in  Virginia.  Both  the  upper  and  the  lower 
house  can,  however,  originate  legislation,  and  the  upper 
house  is  not  confined  to  the  mere  right  of  rejecting  the 
bills  of  the  lower  house.  But  the  upper  house  cannot 
originate  a  money  bill. 

It  is  to  be  observed  that  the  upper  house  is  called  a 
legislative  council,  going  back  to  the  name  it  had  when 
it  was  just  emerging  from  the  condition  of  governor's 
council.  There  is  also  another  provision  which  looks 
backward.  The  privy  council  is  composed  of  three 
members  of  the  legislative  council, — a  curious  sort  of 

77 


Evolution  of  the  Constitution 

restoration  of  the  legislative  council's  old  function  of 
governor's  council. 

A  method  of  impeachment,  however,  is  provided 
which  is  quite  advanced.  The  lower  house  is  to  bring 
the  impeachment,  and  the  upper  house  is  to  try  it ; 
and  this  plan  was  afterwards  adopted  in  the  National 
Constitution. 

The  governor  is  to  be  chancellor  and  surrogate-general, 
and  the  governor  and  the  legislative  council  are  to  con- 
stitute a  court  of  appeals.  The  confusion  of  depart- 
ments is  quite  gross,  and  the  doctrine  of  separation  so 
distinctly  announced  in  Virginia  was  evidently  not  yiet 
appreciated  in  New  Jersey. 

Delaware's  constitution  was  put  in  force  September 
21,  1776,  and  was  closely  modelled  on  those  that  had 
preceded  it,  but  added  some  developments.  The  execu- 
tive is  called  the  president,  as  in  the  South  Carolina 
constitution,  and  in  several  subsequent  constitutions  of 
1776  the  same  word  is  used  to  describe  the  governor. 
Afterwards,  when  the  chief  magistrate  of  the  United 
States  was  named  President,  the  States  all  went  back  to 
the  term  governor. 

In  this  Delaware  constitution  the  president,  with  the 
advice  of  the  privy  council,  may  lay  embargoes  and  pro- 
hibit the  exportation  of  goods  for  a  period  not  exceeding 
thirty  days  during  a  recess  of  the  legislature.  This  was 
the  first  appearance  of  this  provision,  and  it  was  often  re- 
peated afterwards.  There  is  also  in  this  constitution  a 
method  of  amendment  by  five  members  in  seven  of  the 
assembly  and  seven  members  of  the  legislative  council. 
This  way  of  amendment  was  evidently  taken  from  the 

78 


The  Constitutions  of  1776 

Pennsylvania  colonial  constitutions,  and  was  the  first  ap- 
pearance of  a  method  of  amendment  in  any  of  the  con- 
stitutions of  1 776.  Each  house  of  the  legislature  is  for 
the  first  time  given  power  to  expel  a  member,  and  the 
provisions  for  adjournments  show  a  nearer  approach  to 
methods  finally  adopted  in  the  National  Constitution. 

The  Delaware  constitution,  however,  shows  the  usual 
confusion  in  the  appointing  of  public  officers.  The 
president  and  the  general  assembly  are  to  appoint  the 
justices  of  the  Supreme  Court  and  the  county  courts  ; 
the  president  and  privy  council  are  to  appoint  the  secre- 
tary, attorney-general,  and  some  other  officers  ;  and  the 
general  assembly  is  to  appoint  generals  and  field  offi- 
cers of  the  militia  and  all  other  officers  of  the  army  and 
navy. 

But  the  president,  with  the  advice  and  consent  of  the 
privy  council,  may  embody  the  militia  and  act  as  captain- 
general  and  commander-in-chief  of  them.  In  the  con- 
stitutions of  1776  the  governor  is  commonly  described 
as  commander-in-chief  of  the  State  forces.  Sometimes 
he  is  called  captain-general  and  commander-in-chief,  and 
sometimes  merely  commander-in-chief  In  the  National 
Constitution  the  President  is  given  part  of  this  title,  and 
called  commander-in-chief  of  the  army  and  navy  of  the 
United  States. 

Pennsylvania's  constitution  was  finished  September 
28,  a  few  days  after  Delaware's.  It  began  with  a  bill 
of  political  and  civil  rights  made  up  to  some  extent 
from  the  Declaration  of  Independence,  which  had  been 
passed  a  few  months  previously.  It  provides  for  amend- 
ment by  vote  of  the  people,  and  then,  strangely  enough, 

79 


Evolution  of  the  Constitution 

clings  to  the  old  colonial  system  of  governor,  council, 
and  assembly,  without  any  second  or  upper  house  of 
legislature.  This  failure  to  fall  in  with  the  tendency 
towards  an  upper  house  may  possibly  have  been  due  to 
the  influence  of  Franklin,  who  had  a  fancy  for  a  single- 
house  legislature.  But  it  was  more  probably  due  to  the 
unprogressive  element  in  the  population,  which  at  that 
time  had  seized  the  political  power  in  Pennsylvania,  and 
in  after-years  destroyed  the  prestige  that  had  made 
Philadelphia  the  metropolis  of  the  country. 

But  Pennsylvania  soon  got  more  than  enough  of  a 
single  house,  which,  having  no  check  upon  its  action, 
became  very  reckless  and  endangered  the  liberties  of  the 
people.  A  sort  of  make-shift  for  a  double  house  was 
provided  for  in  compelling  every  bill  to  pass  two  ses- 
sions of  the  assembly  before  it  became  a  law,  but  this 
proved  entirely  unsuccessful. 

The  president's  council,  which  was  to  be  known  as 
the  Supreme  Executive  Council,  was  to  consist  of  twelve 
members  elected  from  the  different  counties  by  the 
people.  The  president  and  council  were  to  appoint 
public  officers,  propose  business  to  the  assembly,  hear 
impeachments  by  the  assembly  with  the  justices  of  the 
Supreme  Court,  lay  embargoes,  pardon  offences,  and 
"take  care  that  the  laws  be  faithfully  executed."  This 
was  another  retrogression,  and  a  most  bungling  con- 
trivance. It  was  an  attempt  to  create  a  twelve-headed 
executive  with  functions  taken  from  the  old  governor's 
council  of  colonial  times,  and  new  ones  added. 

But  the  most  curious  part  of  this  constitution  was 
that  it  provided  for  a  council  of  censors,  two  from  each 

80 


The  Constitutions  of  1776 

city  and  county,  who  were  to  see  that  the  constitution 
was  not  violated  and  that  all  departments  of  government 
did  their  duty.  It  was  to  pass  censure  when  duty  was 
neglected,  order  impeachments,  recommend  measures 
to  the  legislature,  and,  when  necessary,  call  a  convention 
to  amend  the  constitution.  It  was  an  awkward  attempt 
to  prevent  unconstitutional  legislation.  Altogether,  this 
was  a  most  extraordinary  constitution,  not  much  of  an 
advance,  and  caused  great  dissatisfaction  in  its  working. 

After  Pennsylvania's  constitution  was  put  in  force, 
more  than  a  month  passed  away  before  a  new  one 
appeared,  which  was  Maryland's,  finished  November 
1 1,  1776.  It  begins  with  a  bill  of  rights  which  was  the 
most  complete  and  advanced  that  had  up  to  that  time 
appeared.  It  announced  again  the  doctrine  that  the 
legislative,  executive,  and  judiciary  departments  should 
be  kept  separate.  Then  followed  provisions  about  free- 
dom of  speech,  trial  by  jury,  right  to  petition,  right  of 
search,  and  quartering  of  troops  on  the  people.  In  fact, 
it  was  so  full  that  it  completed  the  development  of  bills 
of  rights,  and  the  hundred  years  that  have  since  elapsed 
have  added  little  or  nothing  to  it 

When  the  National  Constitution  was  submitted  to  the 
people,  great  complaints  were  made  that  it  contained  no 
bill  of  rights,  and  when  the  States  finally  agreed  to  adopt 
it  it  was  with  the  understanding  that  a  bill  of  rights 
should  immediately  be  added  by  way  of  amendment. 
The  first  eleven  amendments  to  the  National  Constitu- 
tion contain  this  bill  of  rights,  and  they  are  taken,  in 
many  instances,  word  for  word  from  the  bill  of  rights 
of  Maryland.     For  example,  the  following  clause  in  the 

6  81 


Evolution  of  the  Constitution 

bill  of  rights  of  the  Maryland  constitution  is  copied 
verbatim  in  the  eighth  amendment  to  the  National 
Constitution,  except  that  the  words  "ought  not  to"  are 
changed  to  "  shall  not :" 

' '  Excessive  bail  ought  not  to  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted." 

Again,  in  the  Maryland  bill  of  rights  we  find,  "That 
a  well-regulated  militia  is  the  proper  and  natural  defence 
of  a  free  government ;"  and  the  second  amendment  to 
the  National  Constitution  says,  "  A  well-regulated  militia 
being  necessary  to  the  security  of  a  free  State,  the  right 
of  the  people  to  keep  and  bear  arms  shall  not  be  in- 
fringed." The  Maryland  bill  of  rights  says,  "  No  soldier 
ought  to  be  quartered  in  any  house  in  time  of  peace 
without  the  consent  of  the  owner,  and  in  time  of  war 
in  such  manner  only  as  the  legislature  shall  direct ;"  and 
the  third  amendment  to  the  National  Constitution  says, 
"  No  soldier  shall  in  time  of  peace  be  quartered  in  any 
house  without  the  consent  of  the  owner,  nor  in  time  of 
war  but  in  a  manner  to  be  prescribed  by  law." 

We  find  also  in  this  Maryland  bill  of  rights  several 
other  ideas  which  were  adopted  in  the  National  Consti- 
tution, such  as  the  prohibition  of  ex  post  facto  laws, 
of  attainder  of  treason,  of  the  granting  of  titles  of  no- 
bility, and  of  the  receiving,  by  any  person  in  public 
office,  of  a  present  from  any  foreign  prince  or  state. 

In  the  matter  of  political  government  the  Maryland 
constitution  provided  for  a  legislature  of  two  branches, 
a  senate  and  a  house  of  delegates.  The  forms  in  pre- 
vious constitutions  were,  for  the  most  part,  followed ; 

8a 


The  Constitutions  of  1776 

but  the  lower  house  was  given  the  right  to  inquire  into 
complaints  and  grievances  as  the  grand  inquest  of  the 
State,  to  punish  for  contempt  or  breach  of  privilege,  and 
to  commit  any  person  to  jail  for  any  crime,  to  remain 
until  discharged  by  law.  The  senate,  it  is  interesting 
to  observe,  is  to  be  chosen  by  electors  in  each  county, 
— ^very  much  after  the  manner  adopted  in  the  National 
Constitution  for  electing  the  President 

A  month  later,  December  18,  1776,  North  Carolina's 
constitution  appeared.  It  begins  with  a  bill  of  rights 
copying  many  of  the  provisions  that  we  have  just  ob- 
served in  Maryland  and  forbidding  retrospective  laws. 
The  only  new  provision,  which  was  afterwards  univer- 
sally accepted,  is  that  all  bills  shall  be  read  three  times 
in  each  house  before  they  become  laws,  and  must  be 
signed  by  the  speakers  of  both  houses.  Except  for 
this,  there  is  nothing  particularly  advanced  about  this 
constitution,  and  it  provides  no  way  of  amendment 

The  Georgia  constitution,  adopted  February  5,  1777, 
shows  no  development  whatever.  In  fact,  it  goes  back 
to  the  old  colonial  system  of  a  governor,  a  governor's 
council,  and  a  single-branch  legislature.  The  pardoning 
power  is  given  to  the  legislature  instead  of  to  the  gov- 
ernor, and  the  document  is  in  every  way  an  inferior 
one. 

New  York's  constitution  was  adopted  April  20,  1777. 
It  had  been  a  long  time  in  making, — in  fact,  since 
July  10,  1776.  Much  difficulty  seems  to  have  been 
experienced  with  it,  and  the  convention  adjourned  and 
readjoumed  repeatedly,  moving  about  from  place  to 
place.     In  most  respects  it  conformed  to  previous  in- 

83 


Evolution  of  the  Constitution 

struments,   but  had   two  striking  developments  which 
passed  into  the  National  Constitution. 

It  begins  with  a  long  and  rather  irrelevant  preamble, 
reciting  the  condition  of  the  country  in  general  and  of 
New  York  in  particular,  and  then  quotes  the  whole  of 
the  Declaration  of  Independence,  of  which  it  highly  ap- 
proves. When  we  come  to  the  frame  of  government 
we  find  a  legislature  consisting  of  an  assembly  and  a 
senate.  The  governor  or  chancellor  and  the  judges  of 
the  Supreme  Court  are  to  constitute  a  council  to  revise 
all  the  bills  of  the  legislature  before  they  are  passed  into 
laws,  so  as  to  prevent  hasty  legislation.  This  council 
is  also  to  have  a  veto  power  if  they  think  a  bill  should 
not  be  passed,  and  this  veto  power  is  described  in  al- 
most the  same  language  as  the  veto  power  of  the  Presi- 
dent in  the  National  Constitution  : 

"And  that  all  bills  which  have  passed  the  Senate  and  Assem- 
bly shall,  before  they  become  laws,  be  presented  to  the  said  coun- 
cil for  their  revisal  and  consideration  ;  and  if  upon  such  revision 
and  consideration  it  should  appear  improper  to  the  said  council, 
or  a  majority  of  them,  that  the  said  bill  should  become  a  law  in 
this  State,  that  they  return  the  same,  together  with  their  objec- 
tions thereto  in  writing,  to  the  Senate  or  House  of  Assembly  ^n 
whichsoever  the  same  shall  have  originated),  who  shall  enter  the 
objections  sent  down  by  the  council  at  large  in  their  minutes, 
and  proceed  to  reconsider  the  said  bill.  But  if,  after  such  recon- 
sideration, two-thirds  of  the  said  Senate  or  House  of  Assembly 
shall,  notwithstanding  the  said  objections,  agree  to  pass  the  same, 
it  shall,  together  with  the  objections,  be  sent  to  the  other  branch 
of  the  legislature,  where  it  shall  also  be  reconsidered,  and,  if  ap- 
proved by  two-thirds  of  the  members  present,  shall  be  a  law. 
And,  in  order  to  prevent  any  unnecessary  delays,  be  it  further 
ordained  that  if  any  bill  shall  not  be  returned  by  the  council 

84 


The  Constitutions  of  1776 

within  ten  days  after  it  shall  have  been  presented,  the  same  shall 
be  a  law,  unless  the  legislature  shall,  by  their  adjournment,  ren- 
der a  return  of  the  said  bill  within  ten  days  impracticable ;  in 
which  case  the  bill  shall  be  returned  on  the  first  day  of  the  meet- 
ing of  the  legislature  after  the  expiration  of  the  said  ten  days." 

The  National  Constitution,  in  Section  7  of  Article  I., 
after  providing  that  the  President,  if  he  approve  of  a  bill, 
shall  sign  it,  goes  on  to  say, — 

"  But  if  not,  he  shall  return  it,  with  his  objections,  to  that  house 
in  which  it  shall  have  originated,  who  shall  enter  the  objections  at 
large  on  their  journal  and  proceed  to  reconsider  it.  If  after  such 
reconsideration  two-thirds  of  that  house  shall  agree  to  pass  the 
bill,  it  shall  be  sent,  together  with  the  objections,  to  the  other 
house,  by  which  it  shall  likewise  be  reconsidered,  and,  if  approved 
by  two-thirds  of  that  house,  it  shall  become  a  law.  ...  If  any 
bill  shall  not  be  returned  by  the  President  within  ten  days  (Sun- 
days excepted)  after  it  shall  have  been  presented  to  him,  the 
same  shall  be  a  law,  in  like  manner  as  if  he  had  signed  it,  unless 
the  congress  by  their  adjournment  prevent  its  return,  in  which 
case  it  shall  not  be  a  law. ' ' 

This  shows  with  great  clearness  how  the  modified  veto 
power  of  the  President  in  the  National  Constitution  was 
gradually  worked  out  on  American  soil,  and  that  it  was 
not  a  copying  of  the  absolute  veto  power  of  the  British 
king.  The  two  quotations  also  show  how  the  National 
Constitution  improved  and  simplified  in  language  all 
the  provisions  it  took  from  previous  documents. 

The  New  York  governor  is  also  to  send  to  the  legis- 
lature a  message  informing  it  of  the  condition  of  the 
State,  and  recommending  to  its  consideration  matters 
that  he  deems  important ;  and  this,  of  course,  suggested 

85 


Evolution  of  the  Constitution 

the  similar  provision  in  the  National  Constitution  for  the 
President's  message. 

These  resemblances  to  the  National  Constitution  are 
certainly  remarkable.  But  in  other  respects  the  New 
York  constitution  had  nothing  in  it  particularly  worthy 
of  notice,  except  that  it  provided  for  voting  by  ballot 
as  an  experiment  to  see  if  it  was  better  than  viva  voce 
voting.  The  assembly  was  also  once  a  year  to  appoint 
a  council  of  senators  to  appoint  public  officers.  This 
was  also  evidently  an  experiment  The  assembly  was 
to  bring  impeachments,  and  the  impeachments  were  to 
be  tried  before  a  court  consisting  of  the  president,  the 
senators,  the  chancellor,  and  the  judges  of  the  Supreme 
Court 

The  constitution  of  Vermont  was  adopted  July  8, 
1777,  but  it  shows  no  advancement,  because  it  was 
copied  almost  word  for  word  from  the  constitution  of 
Pennsylvania.  It  followed  the  Pennsylvania  plan  of  a 
governor  and  council,  with  a  single-branch  legislature, 
and  even  copied  the  Pennsylvania  council  of  censors. 

The  rejected  constitution  of  Massachusetts  was  ordered 
by  the  convention  to  be  laid  before  the  people  February 
28,  1778.  Although  voted  down  by  the  people,  it  em- 
bodied much  of  the  best  thought  of  the  time  in  consti- 
tution-drawing. Its  legislature  was  to  consist  of  a  senate 
and  a  house  of  representatives,  the  same  names  that 
were  afterwards  used  in  the  national  document,  and  the 
senators,  twenty-eight  in  number,  were  to  be  chosen  from 
certain  districts.  The  senate  and  the  house  were  to  be 
distinct  bodies,  and  money-bills  could  originate  only  in 
the  house.     The  governor  was  president  of  the  senate, 

86 


The  Constitutions  of  1776 

commander-in-chief  of  the  militia,  and  admiral  of  the 
navy.  He  could  also  grant  reprieves  for  six  months,  but 
had  not  the  pardoning  power,  which  was  placed  in  a  sort 
of  committee,  consisting  of  the  governor,  the  lieutenant- 
governor,  and  the  speaker  of  the  house  of  representa- 
tives. The  governor  could  lay  embargoes  for  forty 
days  in  a  recess  of  the  general  court,  and  he  and  the 
senate  were  to  try  impeachments  which  should  be 
prosecuted  by  the  house.  There  was  also  a  provision, 
taken  from  the  New  York  constitution,  that  the  gov- 
ernor should  inform  the  legislature  of  the  condition  of 
the  State  and  recommend  matters  to  its  consideration. 
This  rejected  constitution  disclosed  no  new  develop- 
ments, but  contained  most  of  the  best  provisions  which 
had  been  in  previous  documents. 

A  new  constitution  for  South  Carolina  was  framed 
about  the  same  time,  and  finished  March  19,  1778,  but 
did  not  go  into  effect  until  November  of  that  year.  It 
provided  for  a  governor,  a  senate,  and  a  house  of  repre- 
sentatives, and  was  in  other  respects  so  well  abreast  of 
the  times  that  no  comment  is  required.  In  fact,  the 
State  constitutions  had  now  brought  forth  about  all 
that  they  were  to  contribute  to  the  national  document 
Their  senate  and  house  of  representatives,  methods  of 
adjournment,  impeachment,  veto  power,  and  bills-of- 
rights  provisions  were  almost  the  same  as  in  the 
National  Constitution. 

New  Hampshire  also  at  this  time  framed  a  new  con- 
stitution for  herself,  which  was  finished  June  10,  1778, 
submitted  to  the  people,  and  rejected.  It  was  very 
simple  and  short     The  previous  constitution  had  pro- 

87 


Evolution  of  the  Constitution 

vided  no  governor,  and  this  one  did  not  definitely  pro- 
vide a  governor,  but  gave  the  president  of  the  council 
some  of  the  usual  executive  powers.  The  council  was 
an  upper  house  of  the  legislature,  and  elected  its  own 
president  Besides  this  double-branch  legislature,  one 
or  two  other  modern  improvements  were  added ;  but 
New  Hampshire  was  very  backward  in  constitutional 
development,  and  seemed  disinclined  to  make  much 
effort  to  advance. 

The  next  constitution  in  order  was  one  which  Massa- 
chusetts finally  persuaded  her  people  to  accept  in  1 780. 
It  was  very  elaborate  and  verbose,  giving  reasons  for  its 
provisions,  and  full  of  generalities  about  the  sovereignty 
of  the  people  and  the  absurdity  of  hereditary  titles,  all 
of  which  was  probably  thought  necessary  to  overcome 
the  suspicions  of  the  people  and  gain  their  acceptance 
of  the  instrument  The  governor  is  given  the  modified 
veto  power  which  we  found  in  the  constitution  of  New 
York,  and  in  other  respects  this  Massachusetts  consti- 
tution, like  the  one  that  was  rejected,  is  fully  up  to  the 
times.  One  or  two  new  developments  appear, — a  provi- 
sion about  the  suspension  of  habeas  corpus,  and  another 
giving  members  of  the  legislature  privilege  from  arrest, 
both  of  them  very  like  similar  provisions  which  after- 
wards appeared  in  the  National  Constitution. 

New  Hampshire,  like  Massachusetts,  having  had  her 
constitution  of  1778  rejected  by  the  people,  made 
another  attempt,  and  in  1784  secured  a  new  constitu- 
tion. It  requires,  however,  but  little  comment,  because 
it  was  copied  from  the  Massachusetts  constitution  of 
1780.     Only  one  new  development  appeared, — a  pro- 

88 


The  Constitutions  of  1776 

vision  prohibiting  persons  accused  of  crime  from  being 
twice  tried  for  the  same  offence.  This  afterwards  ap- 
peared in  the  National  Constitution,  and  has  been  almost 
universally  copied  in  modern  State  constitutions. 

The  last  constitution  of  all  was  a  new  one  for  Ver- 
mont in  1 786.  But  it  was  a  mere  repetition,  with  slight 
changes,  of  her  constitution  of  1777,  which  was  taken 
from  the  Pennsylvania  constitution  of  1776. 


89 


CHAPTER    IV. 

THE   ENGLISH    SOURCES    OF   THE    CONSTITUTION. 

After  reading  the  assertions  of  learned  writers  that 
our  Constitution  was  modelled  on  the  British  govern- 
ment as  it  existed  in  1787,  I  have  sometimes  turned  to 
the  words  of  the  Constitution  to  see  the  resemblance, 
and  have  never  been  able  to  find  it.  As  one  reads 
along,  sentence  after  sentence,  everything  seems  so 
un-English  and  so  original  and  peculiar  to  our  own 
locality  that  the  mind  is  forced  to  the  conclusion  that 
it  either  grew  up  as  a  natural  product  of  the  soil  or 
was  invented  off-hand, — struck  off  at  a  given  time,  as 
Mr.  Gladstone  says.  I  recommend  to  those  who  be- 
lieve in  the  British  model  theory  to  adopt  this  simple 
plan  :  Read  our  Constitution,  sentence  by  sentence, 
from  beginning  to  end,  and  see  how  many  sentences 
they  can  trace  to  an  origin  in  the  British  government. 

I  do  not  deny  that  in  a  certain  sense  it  is  all  English. 
In  fact,  I  have  taken  considerable  pains  to  show  how 
our  Constitution  was  developed  by  English  colonists 
out  of  the  forms  of  English  trading  corporations  through 
the  English  colonial  charters.  Nor  will  any  one  deny 
that  our  language,  literature,  laws,  and  many  of  our 
customs  and  modes  of  thought,  as  well  as  our  character- 
istic instincts  and  feelings,  are  of  English  origin.  I 
would  be  the  last  person  in  the  world  to  dispute  the 

90 


English  Sources 

Anglo-Saxon  influence  in  our  civilization.  But  all  this 
is  very  different  from  the  dogma  some  wish  to  establish, 
that  our  Constitution  was  taken  or  copied  from  or  sug- 
gested by  the  forms  of  the  British  government  as  it  ex- 
isted in  1787.  In  my  opinion,  there  was  no  copying, 
because  we  were  so  thoroughly  Anglo-Saxon  in  our 
instincts  and  feelings  that  imitation  was  excluded.  We 
acted  after  the  manner  of  our  race,  and  built,  stone 
by  stone,  out  of  the  natural  material  and  conditions 
round  us. 

In  the  first  eleven  amendments  to  the  Constitution 
a  number  of  the  provisions  about  trial  by  jury  and  free- 
dom of  speech  were  doubtless  evolved  from  the  ex- 
perience of  the  race  in  England.  But  even  these,  as 
already  shown,  were  worked  out  slowly  and  re-evolved 
on  American  soil.  In  the  body  of  the  Constitution  it- 
self— the  political  frame-work  proper — there  is  little  or 
nothing  that  can  be  traced  to  the  forms  of  the  British 
government  as  it  existed  in  1787,  or  at  any  other  time 
for  hundreds  of  years  previous. 

I  do  not  deny  that  the  framers  of  our  Constitution 
considered  and  discussed  the  forms  of  the  British  Con- 
stitution. But  they  considered  them  principally,  as  the 
minutes  of  their  debates  will  show,  for  the  purpose,  or 
at  any  rate  with  the  result,  of  avoiding  them.  They 
were  intelligent  men, — a  large  number  of  them  were 
college-bred, — and  they  discussed  the  forms  of  govern- 
ment of  all  countries.  They  were  not  unmindful  of  the 
example  of  Holland,  the  democracies  of  Greece,  the 
Roman  republic  and  empire,  and  the  free  republics  of 
the  Middle  Ages.     They  took  what  light  they  could 

9i 


Evolution  of  the  Constitution 

from  them  all ;  and  I  think  as  good  an  argument  could 
be  framed  to  show  that  they  were  guided  by  what  they 
knew  of  classic  antiquity  as  could  be  brought  forward 
to  prove  that  they  were  guided  by  the  British  Consti- 
tution. 

But  the  foundation  for  all  their  final  decisions,  the 
basis  which  the  forms  of  government  in  Europe  merely 
illustrated  or  made  more  certain,  was  their  own  expe- 
rience of  nearly  two  hundred  years  with  the  colonial 
charters  and  constitutions  and  the  constitutions  of  1776. 
What  they  took  from  England  went  back  through  that 
two  hundred  years,  and  then  not  to  the  British  govern- 
ment, but  to  the  forms  of  the  old  trading  charters. 
What  had  been  evolved  from  the  trading  charters  had 
been  so  long  with  us  that  it  was  completely  American- 
ized, and  it  was  valued  by  the  framers  of  the  Constitu- 
tion for  that  reason,  and  because  it  had  been  tested  by 
two  hundred  years  of  American  life. 

They  did  not  commit  the  absurdity  of  skipping  those 
two  hundred  years  of  their  history,  or  of  crossing  an 
ocean  and  entering  other  countries  to  copy  constitu- 
tions. If  they  had  done  such  a  thing  it  would  have 
been  very  unlike  the  Anglo-Saxon  race.  On  the  con- 
trary, they  did,  I  think,  just  what  we  should  expect  of 
that  race.  They  took  their  own  experience  as  it  was 
up  to  that  date  in  the  place  and  community  for  which 
they  were  making  a  frame  of  government  They  made 
no  skips  or  jumps,  but  went  backward  in  the  past  di- 
rectly from  themselves  and  in  their  own  line,  taking  for 
their  guide  that  which  was  nearest  to  them  and  latest 
developed,  provided  it  had  been  tested  in  that  line  of 

92 


English  Sources 

their  own  past.  The  Anglo-Saxon  always  works  in  this 
way,  step  by  step,  beginning  with  what  he  has  and  what 
is  directly  applicable.  He  seldom,  if  ever,  obliterates 
his  past  or  goes  aside  or  afar  to  seek  a  new  theory,  and 
never  invents  a  brand-new  political  fabric  off-hand. 

The  East  India  Company,  for  example,  was  first 
chartered  in  1599  under  the  name  of  the  "Governor 
and  Company  of  Merchants  of  London  Trading  with 
the  East  Indies."  It  had  a  governor  and  twenty-four 
directors.  The  directors  were  to  elect  the  governor 
and  all  other  oflficers,  make  laws,  punish  crimes,  and  so 
forth.  It  was,  nevertheless,  merely  a  trading  company, 
with  a  touch  of  political  power,  just  like  the  companies 
that  founded  the  American  colonies  which  we  have  been 
discussing  in  the  previous  chapters.  Yet  out  of  it  has 
grown,  by  slow  degrees,  the  present  vast  and  completed 
political  government  of  India,  All  this  growth  was,  so 
to  speak,  out  of  itself,  like  the  growth  of  the  trading 
companies  of  the  American  colonies.  In  1661  we  find 
Charles  II.  giving  it  the  high  governmental  power  of 
making  peace  or  war  with  any  power  not  Christian,  of 
erecting  forts,  and  exercising  criminal  and  civil  juris- 
diction through  judges,  just  as  we  find  these  same  powers 
gradually  given  to  the  American  colonies  in  the  colonial 
charters.  In  1677  it  was  allowed  to  establish  a  mint 
and  coin  money.  And  so  it  went  on,  adding  huge  ter- 
ritorial possessions  to  the  British  Empire,  and  becoming 
more  and  more  of  a  political  power,  and  yet  remaining 
in  form  the  same  old  trading  corporation,  until  1833. 

Even  then,  when  its  trading  attributes  were  mostly 
taken  from  it  and  all  its  property  was  vested  in  the 

93 


Evolution  of  the  Constitution 

Crown,  the  forms  of  the  trading  charter  still  remained, 
and  it  governed  the  vast  properties  and  possessions  as 
trustee  for  the  Crown.  It  was  slowly  transformed,  not 
to  suit  a  theory  or  to  imitate  anything,  but  to  suit 
changing  circumstances,  until,  in  1858,  it  became  a 
recognized  department  of  the  British  government  with 
one  of  the  secretaries  of  state  in  control,  instead  of  the 
old  trading  board  with  its  committees  on  finance,  on 
politics  and  war,  on  judicial  and  legislative  interests, 
and  the  famous  secret  committee. 

But  let  us  return  to  our  own  Constitution  and  be  defi- 
nite and  accurate  about  it,  and  accuracy  and  definite- 
ness  is  more  than  can  be  said  for  the  advocates  of  the 
theory  that  it  was  copied  from  the  British  government 
Let  us  examine  its  provisions  closely,  to  see  what  they 
resemble. 

We  will  begin  with  the  powers  of  the  President,  be- 
cause they  are  the  most  simple  and  striking,  and  it  is 
said  that  they  were  copied  from  the  powers  of  the  British 
king.  Blackstone,  in  his  commentaries  oi)  the  English 
law,  has  five  or  six  chapters  devoted  to  the  powers  of 
the  king,  and  it  is  said  that  the  convention  of  1787 
selected  from  these  the  powers  of  our  President  Mr. 
Bryce,  in  his  "  American  Commonwealth,"  declares  that, 
being  guided  by  the  description  of  the  royal  power  in 
Blackstone,  the  framers  of  our  Constitution  were  misled 
into  taking  rather  ancient  kingly  powers  for  the  Presi- 
dent because  the  description  in  Blackstone  gave  the 
theory  of  royal  power  rather  than  its  practice,  and  its 
theory  was  many  years  behind  its  practice. 

When  we  read  those  chapters  in  Blackstone  we  find 

94 


English  Sources 

most  of  them  taken  up  with  a  description  of  all  sorts 
of  prerogatives  and  powers,  the  king's  dignity,  his 
sovereignty  and  pre-eminence,  his  perpetuity,  his  privy 
council,  his  right  to  appoint  ports  and  havens,  wharfs 
and  quays,  public  markets  and  fairs,  to  regulate  weights 
and  measures,  to  grant  precedence,  and  to  prevent  sub- 
jects from  leaving  the  kingdom,  together  with  others 
which  were  obviously  not  taken  for  the  American 
President  The  only  powers  which  could  by  any  possi- 
bility have  been  copied  are  a  few  mentioned  in  the 
middle  of  Chapter  VIL,  Book  I,  such  as  the  veto 
power,  the  right  to  send  and  receive  ambassadors,  make 
treaties,  and  declare  peace  and  war. 

Let  us  take  the  first  of  these,  the  veto  power, — cer- 
tainly a  very  important  one.  The  veto  power  has  since 
then  been  taken  away  from  the  English  king.  But  at 
the  time  Blackstone  wrote  the  king  was  said  to  have 
an  absolute  veto  on  all  the  bills  passed  by  Parliament 
He  could,  whenever  he  pleased,  prevent  their  becoming 
laws,  and  Parliament  was  helpless. 

If  the  Convention  of  1787  had  given  the  President  an 
absolute  veto,  it  might  possibly  be  Sciid  that  they  took 
it  from  the  king.  But  they  gave  the  President  a  modified 
veto, — a  veto  which  he  could  maintain  only  when  there 
were  less  than  two-thirds  of  both  houses  of  Congress 
against  him  ;  a  sort  of  veto  utterly  unknown  in  England. 

The  history  of  this  modified  veto  has  been  shown 
from  time  to  time  in  the  previous  chapters.  The  colo- 
nists had  been  very  familiar  with  the  absolute  veto  power. 
The  governors  of  some  of  the  colonies  had  it,  and  in 
others  the  king  had  the  right  to  annul  absolutely  any 

95 


Evolution  of  the  Constitution 

laws  within  a  certain  number  of  years  after  their  passage. 
All  sorts  of  trouble  and  contentions  followed  from  this 
absolute  veto,  and  the  colonists  were  not  admirers  of  it 
Only  a  few  of  the  constitutions  of  i  "Jld  gave  it  to  the 
governor,  and  it  was  not  until  the  constitution  of  New 
York  suggested  the  plan  of  a  modified  veto  that  it  be- 
came in  any  degree  acceptable,  and  New  York's  sugges- 
tion was  adopted  almost  word  for  word  in  the  National 
Constitution. 

So  also  the  right  to  send  ambassadors  was  an  absolute 
right  in  the  British  Crown,  which  it  shared  with  no  other 
department.  But  in  the  American  Constitution  we  find 
that  the  President  cannot  appoint  ambassadors  except 
with  the  advice  and  consent  of  the  Senate.  The  Crown 
had  the  absolute  right  to  make  treaties,  but  the  Presi- 
dent can  make  them  only  with  the  advice  and  consent 
of  two-thirds  of  the  Senate.  The  pardoning  power  was 
absolute  in  the  Crown,  but  the  President  cannot  pardon 
in  cases  of  impeachment  The  king  had  the  power  to 
declare  peace  or  war,  but  this  power  is  given  to  Con- 
gress, and  not  to  the  President ;  and  the  power  to  grant 
letters  of  marque,  which  was  in  the  king,  was  given  to 
Congress  alone. 

If  the  framers  of  our  Constitution  took  the  President's 
powers  from  the  powers  of  the  British  Crown  as  de- 
scribed in  Blackstone,  they  were  great  bunglers,  and 
could  hardly  have  been  able  to  read  the  English  lan- 
guage. 

The  only  power  possessed  by  the  President  which  is 
like  any  of  the  powers  of  the  Crown  is  his  command 
of  the  army  and  navy.     But  the  king's  chief  command 

96 


English  Sources 

had  annexed  to  it,  and  as  a  part  of  it,  the  right  to 
"  raise  and  regulate"  armies  and  navies  ;  and  this,  in  the 
American  Constitution,  was  given  to  Congress.  The 
President's  power,  which  is  described  in  the  words 
"shall  be  commander-in-chief  of  the  army  and  navy," 
was,  moreover,  evidently  derived  from  the  constitutions 
of  1776  and  the  colonial  governors.  The  governors 
had  had  this  power  for  more  than  a  hundred  years,  and 
they  were  often  called  "Commanders-in-Chief,"  in  the 
words  of  the  National  Constitution. 

The  President's  message  has  been  supposed  to  have 
been  taken  from  the  English  king's  address  from  the 
throne  on  opening  Parliament,  and  perhaps  there  is 
nowadays  a  slight  resemblance,  because  the  President 
usually  sends  his  message  at  the  opening  of  Congress. 
But  the  language  of  the  Constitution  which  describes 
the  message  makes  it  a  mere  report  on  the  condition 
of  the  country  to  be  given  at  any  time,  very  much  like 
the  report  of  a  head  officer  of  any  organization  :  "  He 
shall,  from  time  to  time,  give  to  Congress  information 
of  the  state  of  the  Union,  and  recommend  to  their  con- 
sideration such  measures  as  he  shall  judge  necessary 
and  expedient"  This  was  taken,  as  already  shown, 
from  the  New  York  constitution  of  1777,  and  had  ap- 
peared for  the  first  time  as  far  back  as  the  New  Hamp- 
shire commission  of  1680. 

The  President  was  also  given  powers  which  do  not 
even  in  the  slightest  degree  resemble  any  of  the  powers 
of  the  king.  He  could  require  the  opinion,  in  writing, 
of  the  principal  officer  in  each  of  the  executive  depart- 
ments upon  any  subject  relating  to  the  duties  of  their 
7  97 


Evolution  of  the  Constitution 

respective  offices.  His  powers  of  appointing  to  public 
office  with  the  consent  of  the  Senate,  of  filling  vacancies 
in  the  recess  of  the  Senate,  and  of  appointing  to  inferior 
offices  without  the  consent  of  the  Senate  if  Congress 
should  give  him  the  power,  are  also  so  totally  unlike 
any  similar  power  of  the  English  king  that  it  is  impos- 
sible to  suppose  any  resemblance  or  imitation. 

The  simple  phrase,  already  noticed,  which  sums  up 
the  most  important  of  the  President's  duties,  "  He  shall 
take  care  that  the  laws  be  faithfully  executed,"  had  no 
origin  in  England,  but  first  appeared,  as  already  shown, 
in  one  of  the  Pennsylvania  colonial  constitutions,  and  was 
repeated  with  variations  in  the  constitutions  of  1776. 

The  English  king  had  the  sole  power  of  assembling 
Parliament  by  writ.  But  the  President  can  convene 
both  houses  only  "on  extraordinary  occasions."  He 
cannot  call  them  except  on  these  extraordinary  occa- 
sions, and  he  has  no  power  to  prorogue  or  adjourn 
them  when  met  except  when  they  disagree  as  to  the 
time  of  their  adjournment,  and  then  "  he  may  adjourn 
them  to  such  time  as  he  shall  think  proper."  This 
arrangement  was  the  result  of  long  experience  in  deal- 
ing with  colonial  governors. 

In  some  of  the  colonies  the  royal  governors  had  the 
power  to  adjourn  the  popular  assemblies,  and  when  they 
were  displeased  with  an  assembly,  or  wanted  to  force 
something  from  it,  they  would  adjourn  it  and  prevent 
its  meeting  again  until  it. gave  what  was  wanted.  It 
was  a  most  oppressive  use  of  power,  and  the  Pennsyl- 
vanians  whose  governors  had  not  this  privilege  con- 
sidered themselves  very  fortunate. 

98 


English  Sources 

The  statement  in  the  National  Constitution  which 
says  that  the  President  "  shall  commission  all  the  officers 
of  the  United  States"  was  not  taken  from  any  power  of 
Blackstone's  enumeration,  but  was  the  result  of  expe- 
rience, and  was  a  brief  and  sensible  way  of  putting  what 
had  been  verbosely  and  circuitously  stated  in  many  of 
the  1776  constitutions.  Some  of  them  gave  in  detail 
what  officers  their  governors  should  commission.  Often 
in  each  clause  where  the  officers  were  created  it  was 
stated  that  the  governor  should  commission  them  ;  and 
sometimes  there  were  officers  who  were  apparently  not 
commissioned  by  the  governor  or  his  council.  Some 
of  the  1776  constitutions,  however,  had  a  simple  clause 
that  all  their  officers  were  to  be  commissioned  by  the 
governor.  The  framers  of  the  National  Constitution 
adopted  this  evidently  clear  and  easy  form,  and  it  is  a 
good  illustration  of  the  way  in  which  the  national  docu- 
ment was  developed  into  its  rather  remarkable  clearness 
and  simplicity  out  of  the  jumbled  and  often  very  care- 
less expressions  of  the  instruments  that  preceded  it 

The  attempt  to  show  resemblances  between  the 
American  Congress  and  the  British  Parliament  is  as 
weak  as  the  attempt  to  derive  the  President's  powers 
from  those  of  the  king.  The  opening  passages  of  the 
Constitution  state  that  the  lower  house  is  to  be  com- 
posed of  members  chosen  every  second  year  by  the 
people,  and  farther  on  we  see  that  both  houses  shall 
assemble  at  least  once  in  every  year,  beginning  on  the 
first  Monday  in  December.  The  President  has  no  con- 
trol whatever  in  dissolving  Congress,  or  in  calling  them 
together,  except  to  adjourn  the  two  houses  when  they 
•  99 


Evolution  of  the  Constitution 

disagree  as  to  the  time  of  adjournment  and  to  call  them 
for  a  special  emergency.  This  at  the  very  start  was 
totally  unlike  the  British  House  of  Commons,  which 
was  not  elected  at  definite  periods,  but  stayed  in  exist- 
ence until  dissolved  by  the  king ;  and  the  reason  for 
this  difference  was  that  our  people  had  found  in  colo- 
nial times  that  great  inconvenience  ensued  whenever  the 
governor  could  in  any  way  control  the  popular  assem- 
bly. The  fixing  of  a  definite  period  for  the  election 
of  Congressmen  was  intended  to  protect  the  popular 
assembly,  by  taking  it  entirely  out  of  the  control  of  the 
President,  and,  so  far  from  being  an  imitation  of  the 
British  Constitution,  was  intended  to  avoid  what  was 
supposed  to  be  a  defect  in  it. 

Again,  we  find  in  almost  the  next  clause  that  the 
members  of  the  House  of  Representatives  are  to  be  ap- 
portioned according  to  population,  giving  one  repre- 
sentative to  every  thirty  thousand  of  the  people.  This 
was  also  the  very  reverse  of  the  English  Constitution, 
which  allowed  members  of  the  House  of  Commons  to 
be  elected  by  pocket  boroughs,  by  colleges,  and  in  all 
sorts  of  ways,  without  any  regard  to  an  even  distribution 
among  the  people.  Each  Congressman  was  also  obliged 
to  be  an  inhabitant  of  the  State  in  which  he  should  be 
chosen.  But  in  England  there  was  no  rule  as  to  resi- 
dence, and  a  member  of  the  House  of  Commons  might 
reside  in  one  county  of  England  and  be  elected  from 
any  other  county. 

When  we  come  to  the  Senate  it  is  as  unlike  the 
House  of  Lords  as  is  possible.  It  is  not  hereditary. 
Its  members   do   not  hold  office  for  life,  but  for  six 


English  Sources 

years,  and  it  is  constituted  expressly  by  localities,  each 
State  being  represented  by  two  senators  who  must  be 
inhabitants  of  that  State.  In  forming  the  Senate,  the 
framers  of  the  Constitution  developed  it,  as  we  have 
already  seen,  out  of  their  own  experience  in  the  con- 
stitutions of  1 776  and  in  colonial  times,  where  we  saw 
the  second  house  of  legislature,  or  senate,  gradually 
evolved  out  of  the  governor's  council.  The  only  pro- 
vision which  shows  a  resemblance  to  the  House  of 
Lords  is  that  the  Senate  has  the  right  to  try  impeach- 
ments, and  this  is  also  the  result  of  experience,  and  not 
imitation  ;  for  the  constitutions  of  1776  made  all  sorts 
of  arrangements  for  courts  to  try  impeachments,  and 
the  placing  of  this  power  in  the  upper  house  was  finally 
decided  upon  after  many  experiments. 

The  Senate  was  also  intended  to  preserve  the  balance 
of  power  among  the  States  and  prevent  the  oppression 
of  the  small  States  by  the  larger  ones.  John  Dickinson 
was  in  the  convention  as  a  representative  from  Delaware, 
a  very  small  State,  and  he  had  much  influence  in  shaping 
this  part  of  the  Senate's  functions.  Delaware  had  been 
partially  annexed  to  Pennsylvania  before  the  Revolu- 
tion. The  two  provinces  had  the  same  governor,  but 
different  legislatures.  At  first  they  had  been  under  the 
same  governor  and  the  same  legislature,  and  it  cost 
Delaware  somewhat  of  a  struggle  to  get  an  independent 
legislature.  She  knew  by  experience  how  easily  a  small 
State  could  be  unduly  controlled  or  ignored,  and  her 
eminent  representative  naturally  became  the  champion 
of  the  weaker  commonwealths.  This  championship 
resulted  not  only  in  the  peculiar  constitution  of  the 


Evolution  of  the  Constitution 

Senate,  but  also  in  that  clause  which  says,  "No  new 
State  shall  be  formed  or  created  within  the  jurisdiction 
of  any  other  State,  nor  any  State  be  formed  by  the 
junction  of  two  or  more  States,  or  parts  of  States,  with- 
out the  consent  of  the  legislatures  of  the  States  con- 
cerned, as  well  as  of  the  Congress."  All  this  was,  of 
course,  native  development 

There  is  also  a  clause  in  the  part  of  the  Constitution 
devoted  to  the  legislative  department  which  has  not 
often  been  noticed.  It  provides  that  a  majority  of  each 
house  shall  constitute  a  quorum,  but  a  smaller  number 
may  adjourn  from  day  to  day  and  may  be  authorized  to 
compel  the  attendance  of  absent  members.  This  was 
doubtless  suggested  by  what  had  happened  in  Pennsyl- 
vania. The  old  Quaker  assembly  under  Penn's  consti- 
tution of  1 70 1  had  resisted  the  movement  to  make  a 
new  constitution  in  i  jy^.  They  had  been  defeated  in 
the  end  by  members  absenting  themselves  so  that  no 
quorum  could  assemble.  Less  than  a  quorum  assem- 
bled day  after  day,  and,  having  no  power  to  compel  the 
attendance  of  other  members,  they  gradually  became  a 
laughing-stock  for  their  inefficiency,  and  the  legislative 
body  that  had  ruled  the  colony  for  nearly  one  hundred 
years  became  extinct  This  event  was  fresh  in  the 
minds  of  the  framers  of  the  National  Constitution,  and 
they  took  care  that  nothing  similar  should  happen  to 
the  Federal  government 

Other  characteristics  of  the  American  Congress  might 
also  be  noted.  The  powers  to  determine  their  own  rules 
of  proceeding,  to  punish  members  for  disorderly  be- 
havior, to  expel  a  member,  to  keep  a  journal,  not  to 


English  Sources 

adjourn  for  more  than  three  days  without  each  other's 
consent,  privilege  from  arrest,  and  other  matters,  are 
more  or  less  characteristic  of  all  legislatures  the  world 
over.  Some  of  these  provisions  could  have  been  taken 
from  England,  but  several  of  them,  as  we  have  seen, 
were  developed  out  of  colonial  experience. 

The  clause  which  forbids  a  senator  or  a  representative 
from  holding  any  civil  office  which  shall  have  been  cre- 
ated or  the  emoluments  whereof  shall  have  been  in- 
creased during  the  time  for  which  he  was  elected  was 
an  obviously  good  provision  which  did  not  have  to  be 
copied  from  any  country  ;  and  the  other  provision,  that 
no  person  holding  any  office  under  the  United  States 
should  be  a  member  of  either  house  during  his  continu- 
ance in  office,  had  been  repeated  in  various  forms  in  the 
constitutions  of  1776,  and  was  a  necessary  part  of  the 
doctrine  that  the  departments  of  government  should  be 
kept  distinct  The  clause  requiring  money-bills  to 
originate  in  the  lower  house  was,  of  course,  an  old 
English  idea,  but  it  had  been  worked  out  and  contended 
for  in  the  colonial  governments  and  in  the  Revolutionary 
constitutions. 

Finally,  Congress  is  given  only  a  limited  power.  Its 
rights  and  duties  are  enumerated,  and  it  cannot  go  be- 
yond this  enumeration  ;  but  the  power  of  the  British 
Parliament  was  general  and  had  no  limits  fixed  to  it 
This  attribute  alone  would  destroy  all  possibility  of  re- 
semblance or  imitation.  It  was  tlie  result  of  the  pecu- 
liar situation  of  the  countr}', — a  federation  of  States 
coming  together  in  a  Union,  to  which  they  intended 
to  delegate  only  a  portion  of  their  sovereignty. 

103 


Evolution  of  the  Constitution 

When  we  come  to  the  federalism  of  the  Constitu- 
tion, the  things  forbidden  to  the  individual  States, — 
making  treaties  with  foreign  powers,  granting  letters  of 
marque,  coining  money,  issuing  bills  of  credit,  passing 
bills  of  attainder,  ex  post  facto  laws,  and  laws  impairing 
the  obligation  of  contracts, — there  could  not  of  course 
be  any  possibility  of  imitation. 


104 


CHAPTER    V. 

THE   EVOLUTION    FROM   THE    COLONIAL   CHARTERS   SHOWN 
IN    DETAIL. 

I.  Absolutism. 

We  are  not  accustomed  to  associate  despotism  with 
our  ideas  of  the  origin  of  government  in  the  United 
States.  But  government  began  with  us  in  despotism, 
as  it  has  begun  with  other  nations.  The  first  American 
charter  gave  Sir  Walter  Raleigh  absolute  control  for  six 
years  of  any  colony  he  should  establish,  and  this  not 
because  the  persons  who  drew  the  charter  were  mon- 
archists or  believed  in  absolutism  as  against  liberty,  but 
because,  in  the  absence  of  all  experience  in  founding 
or  managing  colonies,  this  gift  of  absolute  control  was 
thought  to  be  the  best  way  of  encouraging  some  one  to 
take  the  risks  of  colonizing. 

It  was  a  matter  of  business,  the  most  convenient  way 
that  could  be  devised  at  the  time  ;  and  what  was  appar- 
endy  very  despotic  power  was  given,  as  it  commonly 
is  in  untried  and  dangerous  enterprises,  without  any 
intention  of  establishing  a  theory  or  principle.  Des- 
potism has  begun  in  the  infancy  of  many  nations  in 
a  similar  way,  as  the  best  means  of  meeting  present 
difficulties. 

Twenty-two  years  afterwards,  in  the  Virginia  charter 
of  1606,  the  absolutism  was  modified  in  another  attempt 
to  meet  the  requirements  of  circumstances.     The  law- 

105 


Evolution  of  the  Constitution 

making  power  was  given  to  the  king,  and  the  adminis- 
tration of  any  laws  he  should  devise  was  given  to  coun- 
cils appointed  by  him.  This  was  absolutism,  but  not 
so  crude  and  simple  as  in  Sir  Walter  Raleigh's  charter. 
It  was,  however,  so  far  as  practical  government  was  con- 
cerned, the  last  of  absolutism  in  America,  for  the  next 
document,  the  Virginia  charter  of  1609,  allowed  a  sort 
of  representative  government,  and  after  that  no  govern- 
ment that  could  be  called  absolute  was  ever  put  in  force. 

Absolutism,  however,  survived  in  a  merely  formal  way 
for  a  long  time  afterguards.  The  New  England  charter 
of  1620  created  a  close  corporation  which  could  make 
any  laws  it  pleased  for  the  government  of  its  territory. 
But  this  corporation  used  this  absolute  power,  as  already 
shown,  to  establish  a  very  free  representative  system  of 
government  for  New  England  :  so  that,  in  this  instance, 
the  absolutism  quickly  produced  republicanism.  Nor 
was  the  very  liberal  power  given  to  John  Mason,  the  pro- 
prietor of  New  Hampshire,  ever  successfully  enforced 
in  practice. 

The  Maryland  charter  of  1632  also  continued  abso- 
lutism as  an  obsolete  form,  and,  although  requiring 
the  consent  of  the  freemen  for  all  laws,  allowed  Lord 
Baltimore  to  enact  laws  in  emergencies  when  there  was 
no  time  for  calling  a  meeting  of  the  assembly.  This 
same  provision  was  repeated  in  the  Carolina  charters  of 
1663  and  1665,  and  in  the  Pennsylvania  charter  of  1681, 
which  were  all,  like  that  of  Maryland,  proprietary  char- 
ters. But  the  absolutism  of  these  rather  curious  pro- 
visions was  never  enforced,  and  any  attempt  to  enforce  it 
would  have  brought  on  a  popular  uprising.     It  remained 

106 


Evolution  from  the  Charters 

as  a  mere  survival  of  the  past,  like  a  part  or  faculty  of  a 
species  of  animal  which  has  outlived  its  ancient  useful- 
ness. 

"We  for  vs,  our  heires  and  successors,  are  likewise  pleased 
and  contented,  and  by  these  presents  do  giue  and  graunt  to  the 
said  Walter  Raleigh,  his  heires  and  assignes  for  ever,  that  hee 
and  they,  and  euery  or  any  of  them,  shall  and  may  from  time  to 
time  for  euer  hereafter,  within  the  said  mentioned  remote  landes 
and  Countreis  in  the  way  by  the  seas  thither,  and  from  thence, 
haue  full  and  meere  power  and  authoritie  to  correct,  punish,  par- 
don, gouerne,  and  rule  by  their  and  euery  or  any  of  their  good 
discretions  and  poUicies,  as  well  in  causes  capital,  or  criminall,  as 
ciuil,  both  marine  and  other,  .  .  .  within  6.  yeeres  next  ensuing 
the  date  hereof,  according  to  such  statutes,  lawes  and  ordinances, 
as  shall  bee  by  him  the  saide  Walter  Raleigh,  his  heires  and 
assignes,  and  euery  or  any  of  them  deuised,  or  established." 
(Sir  Walter  Raleigh's  Charter  of  1584.) 

"And  we  do  also  ordain,  establish,  and  agree,  for  Us,  our 
Heirs,  and  Successors,  that  each  of  the  said  Colonies  shall  have 
a  Council,  which  shall  govern  and  order  all  Matters  and  Causes, 
which  shall  arise,  grow,  or  happen,  to  or  within  the  same  several 
Colonies,  according  to  such  Laws,  Ordinances,  and  Instructions, 
as  shall  be,  in  that  behalf,  given  and  signed  with  Our  Hand  or 
Sign  Manual,  and  pass  under  the  Privy  Seal  of  our  Realm  of 
England."     (Virginia  Charter  of  1606.) 

"Wee,  by  the  Advice  of  the  Lords  and  others  of  the  said 
priuie  Councill,  do  by  these  Presents  ordaine,  constitute,  limett, 
and  appoint,  that  from  henceforth,  there  shall  be  for  ever  here- 
after, in  our  Towne  of  Plymouth,  in  the  County  of  Devon,  one 
Body  politicque  and  corporate,  which  shall  have  perpetuall  Suc- 
cession, which  shall  consist  of  the  Number  of  fourtie  Persons, 
and  no  more,  which  shall  be,  and  shall  be  called  and  knowne 
by  the  Name  the  Councill  established  at  Plymouth,  in  the  County 
of  Devon  for  the  planting,  ruling,  ordering,  and  governing  of 
New-England,  in  America.  .  .  .  and  also  to  make,  ordaine,  and 

107 


Evolution  of  the  Constitution 

establish  all  Manner  of  Orders,  Laws,  Directions,  Instructions, 
Forms,  and  Ceremonies  of  Government  and  Magistracy  fitt  and 
necessary  for  and  concerning  the  Government  of  the  said  Collony 
and  plantation."     (Charter  of  New  England  of  1620.) 

"And  the  said  Captain  John  Mason  doth  further  covenant  for 
him,  his  Heirs  and  Assigns,  that  he  will  establish  such  Govern- 
ment in  the  said  portion  of  Lands  and  Islands  granted  unto  him, 
and  the  same  will  from  time  to  time  continue,  as  shall  be  agree- 
ble  as  near  as  may  be  to  the  Laws  and  Customs  of  the  Realm  of 
England  ;  and  if  he  shall  be  charged  at  any  time  to  have  neglected 
his  duty  therein,  that  then  he  will  reform  the  same,  according  to 
the  Discretion  of  the  President  and  Council,  or  in  Default  thereof, 
it  shall  be  lawful  for  any  of  the  aggrieved  Inhabitants  or  Planters, 
being  Tenants  upon  the  said  Lands,  to  appeal  to  the  chief  Court 
of  Justice  of  the  said  president  and  Council."  (Grant  of  New 
Hampshire  of  1629.) 

"  And  forasmuch,  as  in  the  government  of  so  great  a  province, 
sudden  accidents  do  often  happen,  whereunto  it  will  be  necessary 
to  apply  a  remedy,  before  the  freeholders  of  the  said  province, 
their  delegates  or  deputies,  can  be  assembled  to  the  making  of 
laws,  .  .  .  therefore  for  the  better  government  of  the  said  prov- 
ince, we  will  and  ordain  and  by  these  presents  for  us,  our  heirs 
and  successors  do  grant  unto  the  said  now  Lord  Baltimore  and  his 
heirs,  that  the  said  now  Lord  Baltimore  and  his  heirs,  by  them- 
selves or  by  their  magistrates  and  officers  in  that  behalf  duly  to  be 
ordained  as  aforesaid  may  make  and  constitute  fit  and  wholesome 
ordinances,  from  time  to  time,  within  the  said  province,  to  be 
kept  and  observed  as  well  for  the  preservation  of  the  peace,  as  for 
the  better  government  of  the  people  there  inhabiting,  and  so  as 
the  said  ordinances  be  not  extended,  in  any  sort  to  bind,  charge, 
or  take  away  the  right  or  interest  of  any  person  or  persons  of  or 
in  their  life,  member,  freehold,  goods  or  chattels."  (Maryland 
Charter  of  1632.) 

"With  power  of  judicature  [to  John  Mason]  in  all  causes  and 
matters  whatsoever,  as  well  criminall,  capitall,  and  civil,  ariseing 
or  which  may  hereafter  arise  within  the  lymitts,  bounds,  and  pre- 

108 


Evolution  from  the  Charters 

cincts  aforesayd,  to  bee  exercised,  and  executed  according  to  the 
laws  of  England  as  neere  as  may  bee,  by  the  said  capt.  John 
Mason,  his  heyers  and  assignes,  or  his  or  their  Deputys,  Leeften- 
ants.  Judges,  Stewards,  or  Officers  thereunto  by  him  or  them  as- 
signed, deputed  or  appoynted  from  tyme  to  tyme,  .  .  .  saveing 
and  always  reserving  vnto  the  said  Counsell  and  their  successors, 
power  to  receive,  heare  and  determine  all  and  singular  appeale 
and  apeales  of  every  person  and  persons  whatsoever,  dwelling  or 
inhabiting  within  the  said  Territorys  and  Yslands  or  any  part 
thereof,  soe  granted  as  aforesaid,  of  and  from  all  judgements,  and 
sentences  whatsoever  given  within  the  said  lands  and  territory 
aforesaid."     (Grant  of  New  Hampshire  of  1635.) 

The  provision  given  above  from  the  Maryland  charter  of  1632 
is  substantially  repeated  in  the  grant  of  Maine  of  1639. 

The  Carolina  charter  of  1663  repeats  substantially  the  pro- 
vision given  above  from  the  Maryland  charter  of  1632, 

The  grant  to  the  Duke  of  York  of  1664  repeats  substantially 
the  provision  given  above  from  Sir  Walter  Raleigh's  charter  of 
1584. 

The  Carolina  charter  of  1665  repeats  substantially  the  pro- 
vision given  above  from  the  Maryland  charter  of  1632. 

The  grant  to  the  Duke  of  York  of  1674  repeats  substantially 
the  provision  given  above  from  Sir  Walter  Raleigh's  charter  of 

1584. 

The  Pennsylvania  charter  of  1 68 1  repeats  the  provision  given 
above  from  the  Maryland  charter  of  1632. 

2.  Separate  Departments. 
In  despotic  governments  the  three  great  powers, 
legislative,  executive,  and  judicial,  are  exercised  by  the 
same  person.  This  is  the  cause  of  the  despotism  and 
the  means  by  which  the  government  remains  despotic. 
As  the  three  powers  gradually  become  separated  and 
are  controlled  by  different  persons,  the  government  ad- 
vances in  freedom. 

109 


Evolution  of  the  Constitution. 

The  first  American  government — Sir  Walter  Raleigh's 
charter  of  1584 — was  thoroughly  despotic,  and  Sir 
Walter  exercised  all  three  of  the  powers.  In  the  next 
government — the  Virginia  charter  of  1606 — the  law- 
making power  was  given  to  the  king,  and  the  adminis- 
tration of  the  laws  to  councils  appointed  by  him.  Here 
there  was  a  partial  separation  of  two  of  the  depart- 
ments ;  but  the  separation  was  not  very  distinct,  for  the 
king  appointed  the  executive  body  which  was  to  ad- 
minister the  laws  he  made,  and  this  executive  body, 
besides  administering  the  laws,  may  have  also  acted  as 
a  judiciary  department  But  still  it  was  a  beginning  of 
separateness. 

In  the  Virginia  charter  of  1609  the  laws  were  made 
by  a  council  resident  in  England,  which  council  was 
elected  by  a  majority  vote  of  the  members  of  the  cor- 
poration ;  and  this  same  council  appointed  the  gov- 
ernor and  other  officers.  Here  we  have  a  legislative 
body  elected,  so  to  speak,  by  the  people,  and  an  execu- 
tive department  appointed  by  the  legislature.  But  there 
is,  as  yet,  no  separate  judicial  department,  and  pre- 
sumably the  power  of  that  department  is  to  be  exercised 
by  the  executive. 

Apparently  no  attempt  was  made  in  any  of  the  colo- 
nial governments  to  establish  a  separate  judicial  depart- 
ment until  the  Mar>'land  charter  of  1632,  which  gives 
Lord  Baltimore  express  power  to  establish  courts  of 
justice  and  provide  everything  that  relates  thereto. 
But  six  years  afterwards,  in  the  fundamental  orders  of 
Connecticut  of  1638,  the  judicial  power  is  given  to  the 
magistrates,  who  were  in  effect  a  governor's  council  and 


Evolution  from  the  Charters 

part  of  the  executive  :  so  that  the  advance  of  the  Mary- 
land charter  is  checked,  and  colonial  government  again 
consists  of  only  two  departments,  legislative  and  execu- 
tive, with  the  executive  exercising  the  powers  of  a  ju- 
dicial department 

In  1662,  however,  the  Connecticut  charter  gave  ex- 
press power  to  the  general  assembly  to  establish  separate 
courts,  both  civil  and  criminal,  and  from  that  time,  with 
the  exception  of  New  Hampshire,  the  colonial  govern- 
ments seem  to  have  had  the  three  departments,  legisla- 
tive, executive,  and  judicial. 

There  was  still  a  certain  amount  of  confusion  among 
them.  The  governor's  council,  as  we  have  seen,  often 
sat  with  the  assembly,  and  in  this  way  the  executive 
was  too  much  mingled  with  the  legislative.  The  grad- 
ual evolution  of  the  governor's  council  into  an  upper 
house  of  the  legislature  was  constantly  remedying  this 
defect ;  but  in  many  other  ways  the  confusion  lingered. 
There  was  a  tendency  to  give  the  governor's  council 
judicial  duties  to  perform,  as  in  the  Massachusetts  char- 
ter of  1 69 1,  and,  although  the  three  powers  were  usually 
separately  created,  there  was  no  express  command  pro- 
hibiting an  individual  from  holding  two  inconsistent 
offices.  A  judge  might  be  elected  to  the  legislature, 
and  there  were  no  express  words  in  the  charter  or  con- 
stitution to  compel  him  to  resign  his  judgeship.  Simi- 
larly, a  member  of  the  legislature  might  hold  some 
executive  office  or  be  an  officer  in  the  militia. 

The  first  appearance  of  any  conscious  attempt  to 
keep  the  powers  more  distinctly  separated  is  in  the 
Georgia  charter  of  1732,  which  provides  that  no  person 


Evolution  of  the  Constitution 

holding  an  office  of  profit  under  the  corporation  shall 
be  a  member  of  the  corporation.  The  corporation,  or 
members  of  the  company,  under  this  charter,  made  the 
laws  and  appointed  the  council  which  carried  on  the 
company's  executive  business ;  so  that  the  corporation 
was,  in  effect,  the  legislative  department ;  and  the  pro- 
vision for  more  distinct  separateness  meant  that  no 
member  of  the  legislative  department  should  hold  any 
office  in  the  executive  department,  or,  presumably,  in 
the  judicial  department,  if  there  was  one. 

Twenty-two  years  afterward,  in  Hutchinson's  plan 
of  union  of  1754,  we  find  a  similar  provision,  to  the 
effect  that  no  member  of  the  council  should  be  chosen 
to  any  office,  civil  or  military.  After  this  no  more 
written  forms  of  government  appeared  until  the  consti- 
tutions of  1776,  and  in  the  second  one  of  these,  the 
South  Carolina  constitution,  we  find  a  somewhat  elabo- 
rate provision  declaring  what  offices  are  inconsistent 
with  each  other  and  cannot  be  held  by  the  same  person. 

In  Virginia's  constitution,  which  came  next,  the  gen- 
eral principle  is  laid  down  for  the  first  time  that  "  the 
legislative,  executive,  and  judiciary  departments  shall 
be  separate  and  distinct,  so  that  no  one  of  them  exercise 
the  powers  properly  belonging  tq  the  others,  nor  shall 
any  person  exercise  the  powers  of  more  than  one  of 
them  at  the  same  time." 

It  is  curious,  however,  as  showing  the  old  condition 
of  things  still  lingering,  that  at  the  close  of  this  general 
principle  in  the  Virginia  constitution  an  exception  is 
made  allowing  the  justices  of  the  county  courts  to  be 
eligible  to  either  house  of  assembly. 


Evolution  from  the  Charters 

But  the  movement  in  favor  of  more  distinct  separate- 
ness  was  now  well  under  way,  and,  as  we  pass  along 
among  the  constitutions  of  1776,  we  find  nearly  every 
one  of  them  either  laying  down  the  broad  principle  first 
declared  by  Virginia  or  giving  in  detail  the  offices  which 
were  inconsistent  and  could  not  be  held  by  the  same 
person  ;  and  in  some  of  them  both  the  principle  and  the 
detailed  description  of  the  inconsistent  offices  are  given. 

By  the  time  the  National  Constitution  was  framed,  the 
doctrine  of  separate  departments  was  thoroughly  under- 
stood. The  Constitution  describes  each  department  and 
assigns  its  duties  with  a  clearness  that  leaves  no  doubt 
of  their  distinctness,  and,  to  show  what  offices  are  in- 
consistent, contents  itself  with  a  simple  phrase  forbidding 
any  person  holding  an  office  under  the  United  States 
to  be  a  member  of  either  house  during  his  continuance 
in  office. 

The  slow  growth  of  the  principle  of  separate  depart- 
ments during  two  hundred  years — from  the  confused 
despotism  of  Sir  Walter  Raleigh's  charter  of  1 584  to  the 
enlightened  distinctness  of  the  Constitution,  which  makes 
each  department  almost  independent — is  an  excellent 
illustration  of  the  way  in  which  our  constitutional  ideas 
have  grown  naturally  on  our  own  soil,  without  that  imi- 
tation of  foreign  forms  upon  which  some  writers  have 
insisted. 

At  a  time  when  the  departments  of  our  colonial  gov- 
ernments were  much  confused,  the  departments  of  the 
British  government  were  quite  distinct,  and  our  consti- 
tution-makers could  have  imitated  that  distinctness  with 
a  stroke  of  the  pen.  But  they  were  not  looking  for 
8  "3 


Evolution  of  the  Constitution 

anything  to  imitate,  and  they  were  not  constructing 
theories  or  ideals.  They  were  constructing  practical 
governments  suited  to  the  conditions  of  time  and  place, 
and,  among  primitive  conditions  in  a  new  country,  a 
government  with  all  the  departments  fused  into  one, 
or  into  two  only  slightly  separated,  is  often  the  best  that 
can  be  devised. 

The  first  and  original  of  all  governments  is  the  govern- 
ment of  a  father  over  the  family,  which,  so  far  as  a  family 
is  concerned,  could  not  be  improved  by  any  doctrine  of 
divided  authority  ;  and  for  certain  simple  enterprises 
the  one-man  power  is  still  the  best.  The  colonizers  of 
America  did  not  construct  the  single  authority  of  Sir 
Walter  Raleigh's  charter  or  the  very  slighdy  separated 
departments  of  succeeding  charters  because  they  were 
ignorant  of  the  principle  of  distinct  departments ;  they 
did  it  because  they  were  working  out  the  great  prob- 
lem of  the  continent  according  to  its  needs.  They 
were  simple  when  their  conditions  were  simple,  and 
they  became  elaborate  as  the  requirements  became 
elaborate.  Our  present  National  Constitution  would 
have  been  as  unsuited  and  ridiculous  to  the  America 
of  1584  as  Sir  Walter's  charter  of  that  year  would 
be  unsuited  and  ridiculous  to  the  United  States  of 
to-day. 

It  is  a  common  assertion  that  the  doctrine  of  separate 
departments  was  first  taught  to  us,  as  well  as  to  the 
rest  of  the  world,  by  Montesquieu's  "Spirit  of  Laws," 
which  appeared  in  1 748.  But  the  colonial  governments 
had  begun  to  separate  their  departments  long  before 
that  year,  and  separate  departments  were  to  be  found 

114 


Evolution  from  the  Charters 

in  the  British  government  and  in  other  governments  on 
the  continent  of  Europe.  When  we  come  to  read  the 
chapter  in  Montesquieu  which  treats  of  the  subject 
(Book  XL,  Chap.  VI.),  we  find  that  he  makes  no  pre- 
tence of  having  discovered  anything,  but  merely  com- 
ments on  the  separated  departments  of  the  governments 
of  Europe,  and  praises  the  British  government  for  having 
advanced  farther  in  this  respect  than  the  others.  Mon- 
tesquieu doubtless  emphasized  the  importance  of  sepa- 
rated departments,  and  in  that  sense  helped  and  en- 
couraged their  development ;  but  he  did  nothing  more, 
and  professed  to  do  nothing  more. 

The  quotations  from  the  charters  and  constitutions 
which  show  the  development  in  this  section,  being  too 
long  to  give  in  full,  are  summarized,  a  method  which 
will  be  followed  in  other  sections  when  the  length  of 
the  quotations  renders  it  necessary  : 

No  person  holding  an  office  of  profit  under  the  corporation  to 
be  a  member  of  the  corporation.     (Georgia  Charter  of  1732.) 

No  member  of  council  to  hold  any  civil  or  military  office. 
(Hutchinson's  Plan,  1754.) 

Certain  inconsistent  offices  not  to  be  held  by  the  same  person. 
(South  Carolina  Constitution  of  1776.) 

The  principle  laid  down  that  the  three  departments  should  be 
separate  and  distinct.     (Virginia  Constitution  of  1776.) 

Certain  inconsistent  offices  not  to  be  held  by  the  same  person. 
(New  Jersey  Constitution  of  1776.) 

Certain  inconsistent  offices  not  to  be  held  by  the  same  person. 
(Delaware  Constitution  of  1776.) 

Certain  inconsistent  offices  not  to  be  held  by  the  same  person. 
(Pennsylvania  Constitution  of  1776.) 

The  principle  laid  down  that  the  three  departments  should  be 
separate  and  distinct ;  and,  certain  inconsistent  offices  not  to  be 

"5 


Evolution  of  the  Constitution 

held  by  the  same  person.  (Maryland  Declaration  of  Rights  and 
Constitution  of  1776.) 

The  principle  laid  down  that  the  three  departments  should  be 
separate  and  distinct.  (North  Carolina  Declaration  of  Rights  of 
1776.) 

Certain  inconsistent  offices  not  to  be  held  by  the  same  person. 
(North  Carolina  Constitution  of  1776.) 

The  principle  laid  down  that  the  three  departments  should  be 
separate  and  distinct ;  and,  certain  inconsistent  offices  not  to  be 
held  by  the  same  person.    (Georgia  Constitution  of  1777.) 

Certain  inconsistent  offices  not  to  be  held  by  the  same  person. 
(New  York  Constitution  of  1777.) 

Certain  inconsistent  offices  not  to  be  held  by  the  same  person. 
(Rejected  Constitution  of  Massachusetts  of  1778.) 

Certain  inconsistent  offices  not  to  be  held  by  the  same  person. 
(South  Carolina  Constitution  of  1778.) 

Certain  inconsistent  offices  not  to  be  held  by  the  same  person. 
(Articles  of  Confederation,  1778.) 

Certain  inconsistent  offices  not  to  be  held  by  the  same  person. 
(Drayton's  Articles  of  Confederation,  1778.) 

Certain  inconsistent  offices  not  to  be  held  by  the  same  person. 
(Rejected  Constitution  of  New  Hampshire  of  1778.) 

The  principle  laid  down  that  the  three  departments  should  be 
separate  and  distinct ;  and,  certain  inconsistent  offices  not  to  be 
held  by  the  same  person.     (Massachusetts  Constitution  of  1780.) 

The  principle  laid  down  that  the  three  departments  should  be 
separate  and  distinct ;  and,  certain  inconsistent  offices  not  to  be 
held  by  the  same  person.  (New  Hampshire  Constitution  of 
1784.) 

The  principle  laid  down  that  the  three  departments  should  be 
separate  and  distinct ;  and,  certain  inconsistent  offices  not  to  be 
held  by  the  same  person.     (Vermont  Constitution  of  1786.) 

Members  of  the  national  legislature  to  be  ineligible  to  other 
offices  under  the  national  government,  except  those  belonging 
peculiarly  to  the  functions  of  the  legislature.  (Randolph's  Plan 
of  1787.) 

Members  of  the  national  legislature  to  be  ineligible  to  other 

116 


Evolution  from  the  Charters 

offices  under  the   national  government.      (Pinckney's  Plan  of 
1787.) 

The  Constitution  prohibits  members  of  Congress  from  holding 
any  other  office  under  the  United  States.     (The  Constitution.) 

3.  The  House  of  Representatives. 

The  legislative,  or  law-making,  power  is  with  us  the 
foundation  of  government ;  for  it  is  in  this  body  that 
the  will  of  the  people  is  first  shown  and  most  completely 
expressed.  The  first  article  of  the  National  Constitution, 
and  the  first  words  of  that  article,  are  devoted  to  de- 
scribing the  legislature,  and  our  modem  State  constitu- 
tions usually  begin  in  the  same  way. 

This  conception  was  reached  by  a  process  of  evolution. 
The  colonial  charters  were  apt  to  begin  by  creating  a 
governor  and  describing  the  executive  department,  and 
it  is  evident  on  reading  them  that  they  regarded  this 
part  of  government  as  the  foundation  and  the  legisla- 
ture as  secondary  and  a  mere  check  on  the  governor 
and  his  council,  or  as  a  privilege  graciously  allowed  the 
people.  But  in  the  constitutions  of  1 776  we  see  the 
legislature  assuming  the  modem  position  and  impor- 
tance which  it  now  has  without  the  slightest  question. 

Our  legislative  power,  as  now  developed,  consists  of 
two  bodies, — the  Senate  and  the  House  of  Representa- 
tives,— and  of  these  the  Senate  is  always  spoken  of  as 
the  upper  house,  and  is  regarded  as  the  greater  in 
dignity.  But  the  lower  house  is  the  greater  in  power 
and  importance,  because  it  is  more  directly  representa- 
tive of  the  people  and  holds  the  purse-strings  ;  that  is 
to  say,  has  the  sole  power  of  originating  money-bills. 
It  has  sometimes  been  called  the  first  house,  although 

»'7 


Evolution  of  the  Constitution 

the  Senate  is  called  the  upper  house,  and  it  is  rightly- 
called  first,  because  it  was  developed  first 

As  the  summary  shows,  its  roots  started  in  the  Virginia 
charter  of  1609,  and  it  succeeded  to  the  absolutism  of 
the  two  previous  charters, — the  Virginia  charter  of  1 606 
and  Sir  Walter  Raleigh's  of  1584.  It  began  in  that 
Virginia  charter  of  1609  in  the  simple  form  of  a  council 
which  was  to  be  elected  by  the  members  of  a  corpora- 
tion and  make  the  laws  for  the  colony.  This  was  the 
real  beginning  of  American  representative  government 
The  power  of  the  people,  on  which  the  great  fabric  of 
our  republic  is  now  reared,  was  first  recognized  by  giving 
power  to  all  the  members  of  a  corporation  which  owned 
a  colony.  From  this  it  was  a  natural  step  to  transfer 
the  power  from  the  members  or  stockholders  of  the 
corporation  to  the  inhabitants  or  people  of  the  colony. 

This  step  we  find  gradually  made  in  the  next  three 
charters.  The  Virginia  charter  of  1611-12  gives  the 
power  to  all  the  members  of  the  company  to  make  the 
laws  in  a  mass-meeting.  The  Massachusetts  charter  of 
1629  gives  the  power  in  the  same  way,  but  in  the  Mary- 
land charter  of  1632  the  law-making  power  is  given  for 
the  first  time,  not  to  the  members  or  stockholders  of  a 
corporation,  but  to  the  inhabitants  or  people  of  the 
colony,  and  they  are  allowed  to  exercise  it  either  in 
mass-meeting  or,  if  they  become  too  numerous  for  that, 
through  delegates. 

It  is  certainly  rather  strange  that  we  should  have 
developed  our  great  governmental  power,  the  power 
of  the  people  and  their  legislature,  out  of  the  forms 
of  a  corporation.     But  our  people  have  always  made 

118 


Evolution  from  the  Charters 

great  use  of  corporations,  and  we  have  now  developed 
their  use  in  business  enterprises  far  beyond  anything 
known  in  other  countries.  American  corporation  law 
has  become,  like  our  patent  law,  a  great  department  of 
jurisprudence  peculiar  to  the  United  States.  Indeed, 
we  have  pushed  the  development  of  corporations  so  far 
that  their  enormous  power  for  evil  or  good  has  become 
a  political  question. 

The  Maryland  charter  of  1632,  as  we  have  said,  con- 
tained a  suggestion  that  the  people  of  the  colony  could, 
if  they  chose,  exercise  the  law-making  power  through 
delegates  instead  of  in  a  mass-meeting.  The  next 
document,  the  fundamental  orders  of  Connecticut  of 
1638,  carried  this  suggestion  a  step  farther,  and  pro- 
vided that  the  people  should  not  exercise  the  law-making 
power  in  mass-meeting,  but  should  always  elect  deputies, 
which,  with  the  magistrates  or  governor's  council,  should 
constitute  a  body  called  the  general  court. 

Thus,  in  the  year  1638  we  have  a  regular  represen- 
tative legislature  established,  called  the  general  court, 
and  consisting  of  the  governor,  the  governor's  council, 
and  the  delegates  elected  by  the  people.  This  remained 
the  form  of  the  legislative  power  all  through  the  colo- 
nial period.  We  find  it  repeated  in  the  Connecticut 
charter  of  1662,  the  Rhode  Island  charter  of  1663,  and 
the  Concessions  of  East  Jersey  of  1665.  In  1669 
Locke's  curious  constitution  of  Carolina  carries  out  the 
same  idea  of  deputies  elected  by  the  people  ;  but  in- 
stead of  the  governor  and  the  governor's  council  he 
joins  with  the  deputies  several  orders  of  the  nobility, 
and  calls  the  whole  a  parliament  . 

119 


Evolution  of  the  Constitution 

In  the  Concessions  of  West  Jersey  of  1677  the  same 
idea  of  an  assembly  elected  by  the  people  is  continued, 
with  no  governor  or  governor's  council  added  to  it 
The  commission  of  New  Hampshire  of  1680  also  has 
an  elective  assembly.  The  Pennsylvania  frame  of  April 
2,  1683,  introduces  a  reaction  by  taking  away  from  this 
now  well-established  assembly  the  right  to  originate 
laws  and  giving  this  originating  right  to  an  upper  house. 
But  in  the  Massachusetts  charter  of  1691  the  form  of 
governor,  governor's  council,  and  deputies  of  the  peo- 
ple appears  again  ;  and  in  the  frame  of  1696  Pennsyl- 
vania restores  to  her  assembly  the  right  to  originate 
laws.  The  Georgia  charter  of  1732  produces  an  ap- 
parent reaction  by  giving  the  law-making  power  to  a 
corporation.  But  this,  as  already  shown,  was  the  result 
of  very  peculiar  circumstances,  and  need  not  be  con- 
sidered. 

Coming  to  the  constitutions  of  1776,  we  find  them 
accepting  the  old  colonial  assembly  as  their  principal 
legislative  body ;  and  in  the  first  of  these  constitutions, 
that  of  New  Hampshire,  it  is  called  the  house  of  repre- 
sentatives, the  name  afterwards  adopted  for  it  in  the 
National  Constitution.  As  we  pass  on  through  these 
constitutions  of  1776  we  find  it  appearing  in  them  all, 
— sometimes  called  the  assembly,  sometimes  the  house 
of  delegates,  but,  as  we  near  the  end,  more  and  more 
often  called  the  house  of  representatives,  until,  in  the 
simplest  language  of  only  a  few  lines,  the  old  colonial 
assembly,  over  which  the  charters  were  often  so  wordy, 
becomes  the  House  of  Representatives  of  Congress  in 
the  National  Constitution. 


Evolution  from  the  Charters 

The  council  resident  in  England  to  be  elected  by  a  majority 
vote  of  the  company,  and  said  council  to  make  the  laws.  (Vir- 
ginia Charter  of  1609.) 

The  treasurer  and  the  whole  company  to  meet  four  times  a 
year  to  make  the  laws.     (Virginia  Charter  of  1611-12.) 

The  law-making  power  given  to  the  assistants  and  the  whole 
body  of  the  freemen  of  the  company.  (Massachusetts  Charter 
of  1629.) 

The  law-making  power  given  to  the  proprietor  and  the  freemen 
or  their  delegates.     (Maryland  Charter  of  1632.) 

The  governor,  the  magistrates,  and  the  deputies  elected  by  the 
towns  to  constitute  a  general  court  to  make  the  laws.  (Funda- 
mental Orders  of  Connecticut,  1638.) 

In  1643  the  inhabitants  of  Rhode  Island  were  given  a  patent 
which  allowed  them  to  rule  themselves  by  such  form  of  govern- 
ment as  the  majority  of  them  should  find  most  suitable  to  their 
condition. 

The  governor,  deputy-governor,  assistants,  and  the  deputies 
from  the  towns  to  constitute  a  general  assembly  to  make  the  laws. 
(Connecticut  Charter  of  1662.) 

The  above  provision  is  repeated  in  the  Rhode  Island  charter 
of  1663. 

The  Carolina  charter  of  1663  copies  the  provision  given  above 
from  the  Maryland  charter  of  1632. 

The  governor,  council,  and  deputies  of  the  people  to  constitute 
a  general  assembly  to  make  the  laws.  (Concessions  of  East  Jer- 
sey, 1665.) 

The  Carolina  charter  of  1665  copies  the  provision  given  above 
from  the  Maryland  charter  of  1632. 

Three  divisions  of  the  nobility  and  the  deputies  of  the  free- 
holders to  constitute  a  parliament  to  make  the  laws.  (Locke's 
CaroHna  Constitution  of  1669.) 

One  hundred  deputies  elected  by  the  people  to  constitute  the 
general  assembly.     (Concessions  of  West  Jersey  of  1677.) 

The  president  and  council  to  decide  how  many  deputies  elected 
by  the  people  shall  constitute  the  general  assembly.  (Commis- 
sion for  New  Hampshire  of  1680.) 

121 


Evolution  of  the  Constitution 

The  Pennsylvania  charter  of  1681  copies  the  provision  g^ven 
above  from  the  Maryland  charter  of  1632. 

The  general  assembly  given  power  only  to  accept  or  reject  the 
bills  of  the  upper  house  or  make  suggestions  for  their  amend- 
ment.    (Pennsylvania  Frame  of  April  2,  1683.) 

The  above  provision  is  repeated  in  the  Pennsylvania  Frame  of 
1683,  with  some  changes  as  to  the  number  of  members  of  the 
assembly  and  the  time  of  meeting. 

The  governor,  assistants,  and  the  deputies  of  the  towns  to  con- 
stitute the  general  assembly.     (Massachusetts  Charter  of  1691,) 

The  general  assembly  of  Pennsylvania  allowed  to  originate 
bills.     (Pennsylvania  Frame  of  1696.) 

Deputies  of  the  people  to  constitute  an  assembly.  (Pennsyl- 
vania Charter  of  Privileges  of  1701.) 

The  law-making  power  given  to  the  general  meeting  of  the 
corporation.     (Charter  of  Georgia  of  1732.) 

The  lower  branch  of  the  legislature  elected  by  the  people  to 
be  called  the  house  of  representatives.  (New  Hampshire  Consti- 
tution of  1776.) 

The  lower  branch  of  the  legislature  to  consist  of  representa- 
tives of  the  people.     (South  Carolina  Constitution  of  1776.) 

The  lower  branch  of  the  legislature,  called  the  house  of  dele- 
gates, elected  by  the  people.     (Virginia  Constitution  of  1776.) 

The  lower  house  to  consist  of  representatives  of  the  people. 
(New  Jersey  Constitution  of  1776.) 

The  lower  house  called  the  house  of  assembly.  (Delaware 
Constitution  of  1776.) 

A  single  legislative  body  called  the  house  of  representatives 
elected  by  the  people.     (Pennsylvania  Constitution  of  1776.) 

The  lower  house  called  the  house  of  delegates.  (Maryland 
Constitution  of  1776.) 

The  lower  house  called  the  house  of  commons.  (North  Caro- 
lina Constitution  of  1776.) 

A  single  legislative  body  to  consist  of  representatives  of  the 
people.     (Georgia  Constitution  of  1777.) 

The  lower  house  called  the  assembly  and  composed  of  repre- 
sentatives of  the  people.     (New  York  Constitution  of  1777.) 


Evolution  from  the  Charters 

The  Vermont  constitution  of  1777  repeats  the  provision  given 
above  from  the  Pennsylvania  constitution  of  1776. 

The  lower  house  to  be  called  the  house  of  representatives,  and 
to  consist  of  one  from  each  town.  (Rejected  Constitution  of  Mas- 
sachusetts of  1778.) 

The  lower  house,  to  be  called  the  house  of  representatives,  to 
be  chosen  every  second  year.  (South  Carolina  Constitution  of 
1778.) 

The  house  of  representatives  to  consist  of  deputies  from  the 
towns.     (Rejected  Constitution  of  New  Hampshire  of  1778.) 

The  lower  house  to  consist  of  representatives  from  the  towns. 
(Massachusetts  Constitution  of  1780.) 

The  above  provision  from  the  Massachusetts  constitution  of 
1780  is  repeated  in  the  New  Hampshire  constitution  of  1784. 

A  single  legislative  body,  called  the  house  of  representatives, 
to  be  chosen  annually.     (Vermont  Constitution  of  1786.) 

Suggestion  of  a  legislature,  to  be  called  the  first  branch  of  the 
national  legislature,  to  be  composed  of  representatives  of  the 
people.     (Randolph's  Plan,  1787.) 

Suggestion  of  a  national  legislative  body,  chosen  by  the  people 
of  the  several  States,  to  be  called  the  house  of  delegates.  (Pinck- 
ney's  Plan,  1787.) 

The  House  of  Representatives  to  be  elected  by  the  people 
every  second  year.     (The  Constitution.) 

4.  The  Senate. 

The  line  of  development  which  led  to  the  House  of 
Representatives  began,  as  was  shown  in  the  preceding 
section,  in  the  Virginia  charter  of  1609.  The  Senate's 
line  of  development  began  apparently  in  the  next  docu- 
ment,— the  Virginia  charter  of  161 1-12. 

This  charter  created  what  may  be  called  an  executive 
council,  which  was  to  sit  every  week  and  manage  the 
casual  and  ordinary  affairs,  very  much  as  a  governor  or 
any  other  executive  officer  might  manage  them.     This 

>23 


Evolution  of  the  Constitution 

body  certainly  bore  a  strong  resemblance  to  the  gover- 
nor's council,  which  soon  afterwards  appeared  ;  and  not 
infrequently  in  the  colonial  period  this  form  of  an  ex- 
ecutive council,  without  any  governor  or  with  a  governor 
merely  subservient  to  the  council,  was  made  use  of. 

But  in  the  next  document,  the  Massachusetts  charter 
of  1629,  the  council  appears  as  a  body  of  persons  to 
advise  and  assist  the  governor,  a  form  in  which  it  con- 
tinued, with  variations  and  developments,  for  over  a  hun- 
dred years.  In  this  Massachusetts  charter  of  1629,  the 
assistants,  as  the  council  is  called,  are  to  sit  with  the 
whole  body  of  the  freemen  to  enact  laws.  In  the  next 
document,  the  Fundamental  Orders  of  Connecticut  of 
1638,  the  freemen,  instead  of  meeting  in  a  body  to  enact 
laws,  send  delegates  to  a  general  assembly,  and  the 
council,  in  this  instance  called  magistrates,  is  a  part  of 
this  assembly. 

The  council  as  a  part  of  the  assembly,  sitting  and 
voting  with  it,  is  now  well  established  as  a  regular  de- 
partment of  colonial  government,  and  we  find  it  in  the 
Connecticut  charter  of  1662,  the  Rhode  Island  charter 
of  1663,  and  the  Concessions  of  East  Jersey  of  1665. 
But  in  Locke's  Carolina  constitution  of  1669  we  see 
for  the  first  time  a  disposition  to  make  the  council  a 
separate  or  upper  house  of  the  legislature  ;  and  Locke 
carried  it  so  far  that  he  gave  to  the  council,  as  an  upper 
house,  the  sole  privilege  of  originating  legislation, — an 
unfortunate  idea,  which  was  followed  by  William  Penn 
in  one  of  his  frames  of  government  for  Pennsylvania, 
and  not  eradicated  from  American  minds  for  many 
years. 

124 


Evolution  from  the  Charters 

In  1674,  five  years  after  Locke's  constitution,  an 
amendment  to  the  Concessions  of  East  Jersey  provided 
that  the  council  should  sit  apart  from  the  assembly,  but 
avoided  Locke's  excess  of  giving  it  the  right  to  originate 
legislation.  But  a  few  years  afterwards,  in  the  Pennsyl- 
vania Frame  of  1683,  Locke's  excess  is  followed.  The 
notion  of  making  the  council  a  separate  and  upper 
house  having  been  once  acquired,  it  seemed  impossible 
to  prevent  it  from  running  too  far ;  and  in  Pennsylvania 
the  council  was  given  so  much  control  of  the  governor 
that  he  was  a  mere  figure-head. 

The  Pennsylvania  Frame  of  1683  had,  however,  the 
interesting  development  of  dividing  the  members  of 
the  council  into  classes,  so  that  one-third  should  retire 
from  office  each  year, — a  method  adopted  in  some  of 
the  constitutions  of  1 776,  and  afterwards  followed  in  the 
Senate  of  the  National  Constitution. 

In  the  next  document,  the  Massachusetts  charter  of 
1 69 1,  the  council  returns  to  its  former  function  of  sitting 
with  the  assembly,  but  a  new  and  very  interesting  de- 
velopment appears  for  the  first  time.  The  council  is  to 
be  chosen  to  represent  certain  localities  or  great  districts, 
— to  wit,  Maine,  New  Plymouth,  Massachusetts  Bay, 
and  the  land  between  the  Sagadahoc  River  and  Nova 
Scotia, — ^which  by  their  union  were  to  form  the  new 
province  of  Massachusetts.  Thus  we  have  developed 
in  the  council  the  Senate's  function  of  representing  the 
States  of  a  Union. 

Soon  after  this,  in  1696,  the  right  to  originate  legis- 
lation was  taken  away  from  the  council  in  Pennsyl- 
vania ;  so  that  we  may  say  that  in  the  year  1 700  the 

125 


Evolution  of  the  Constitution 

American  people  had  developed  the  governor's  coun- 
cil into  the.  two  main  functions  of  the  modern  senate, — 
namely,  that  it  should  be  a  separate  or  upper  house, 
and  that  its  members  should  represent  certain  large 
localities  which  by  their  union  made  up  the  common- 
wealth. 

So  soon  as  we  come  to  the  constitutions  of  1776,  these 
two  ideas  become  more  firmly  established.  In  the  first 
of  them,  the  constitution  of  New  Hampshire,  the  coun- 
cil is  a  separate  and  upper  house  and  represents  the 
counties.  In  the  Virginia  constitution  it  represents  dis- 
tricts larger  than  a  single  county,  is  called  for  the  first 
time  a  senate,  and  also  embodies  the  plan  which  first 
appeared  in  the  Pennsylvania  frame  of  1683,  of  having 
a  certain  proportion  of  the  members  retire  from  office 
each  year. 

In  the  Delaware  constitution  we  find  a  slightly  different 
plan  of  rotation,  and  in  the  New  York  constitution  of 
1777  the  same  plan  as  in  Virginia.  The  other  State 
constitutions  repeated  the  characteristics  already  estab- 
lished for  an  upper  house,  which  was  thus  fully  devel- 
oped before  the  close  of  the  Revolution ;  and  when  the 
National  Constitution  was  framed,  in  1787,  the  upper 
house,  with  its  name  senate,  its  representation  of  large 
localities,  and  its  method  of  rotation,  was  transferred 
easily  and  naturally  from  the  governments  of  the  States 
to  the  new  government  of  the  Union. 

An  executive  council  established  to  meet  once  a  week  for 
casual  matters.     (Virginia  Charter  of  161 1- 12.) 

The  council  called  assistants,  and  sit  with  the  freemen  to  make 
the  laws.     (Massachusetts  Charter  of  1629.) 

126 


Evolution  from  the  Charters 

The  council  called  magistrates,  and  a  part  of  the  general  as- 
sembly.    (Fundamental  Orders  of  Connecticut  of  1638.) 

The  council  called  assistants,  and  a  part  of  the  general  assem- 
bly.    (Connecticut  Charter  of  1662.) 

The  above  provision  is  substantially  repeated  in  the  Rhode 
Island  charter  of  1663. 

The  governor' s  council  to  sit  with  the  general  assembly.  (Con- 
cessions of  East  Jersey  of  1665.) 

The  grand  council  an  upper  house  and  to  originate  legislation. 
(Locke's  Carolina  Constitution  of  1669.) 

The  governor's  council  to  sit  apart  from  the  representatives. 
(Amendment  in  1674  to  the  Concessions  of  East  Jersey  of  1665  ; 
I  N.  J.  Arch.,  175.) 

President  and  his  council  to  rule  the  colony.  (Commission  for 
New  Hampshire  of  1680.) 

The  governor's  council  to  be  elected  by  the  freemen,  to  origi- 
nate legislation,  and  to  be  divided  into  classes  so  that  one-third 
part  may  be  elected  each  year.  (Pennsylvania  Frame  of  April  2, 
1683.) 

The  above  provision  is  repeated  in  the  Pennsylvania  Frame 
of  1683,  except  that  the  number  of  the  council  is  reduced  to 
eighteen. 

The  governor's  council  to  be  elected  yearly  by  the  general 
assembly  and  to  represent  certain  districts  (Massachusetts  Bay, 
New  Plymouth,  Maine,  and  the  territory  between  Sagadahoc 
River  and  Nova  Scotia),  and  to  sit  in  the  general  assembly. 
(Massachusetts  Charter  of  1691.) 

Right  to  originate  legislation  taken  away  from  the  council  in 
Pennsylvania.     (Pennsylvania  Frame  of  1696.) 

Council  not  to  be  a  court,  and  apparently  abolished,  but  was 
afterwards  regularly  appointed  by  the  proprietors.  (Pennsylvania 
Charter  of  Privileges  of  1701.) 

An  executive  council  established  for  Georgia.  (Georgia  Char- 
ter of  1732.) 

The  council  to  be  appointed  by  the  house  of  representatives  to 
represent  the  counties  and  be  an  upper  house.  (New  Hamp- 
shire Constitution  of  1776.) 

127 


Evolution  of  the  Constitution 

The  council  to  be  elected  by  the  general  assembly,  and  to  be 
an  upper  house.     (South  Carolina  Constitution  of  1776.) 

A  senate  representing  districts  of  the  State,  to  be  elected  by 
the  districts,  and  to  be  divided  into  classes  so  that  one-fourth 
may  be  elected  each  year.     (Virginia  Constitution  of  1776.) 

A  senate  representing  the  counties  and  elected  by  the  counties. 
(New  Jersey  Constitution  of  1776.) 

A  senate  representing  the  counties  and  elected  by  the  counties. 
(Delaware  Constitution  of  1776.) 

A  senate  representing  the  counties  and  the  towns  of  Balti- 
more and  Annapolis,  to  be  elected  by  electors  chosen  by  the 
counties  and  the  two  towns.  (Maryland  Constitution  of 
1776.) 

A  senate  representing  the  counties  and  elected  by  the  counties. 
(North  Carolina  Constitution  of  1776.) 

An  executive  council  representing  the  counties  and  chosen  by 
the  house  of  representatives  to  suggest  amendments  to  the  laws 
passed  by  the  house  of  representatives.  (Georgia  Constitution 
of  1777.) 

A  senate  chosen  by  certain  large  districts  to  hold  office  four 
years,  and  a  fourth  part  to  be  elected  each  year.  (New  York 
Constitution  of  1777.) 

A  senate  chosen  by  districts.  (Rejected  Constitution  of  Mas- 
sachusetts of  1778.) 

A  senate  chosen  by  districts.  (South  Carolina  Constitution  of 
1778.) 

A  council  chosen  by  counties.  (Rejected  Constitution  of  New 
Hampshire  of  1778.) 

A  senate  chosen  by  districts.  (Massachusetts  Constitution  of 
1780.) 

The  above  provision  from  the  Massachusetts  constitution  of 
1 780  is  repeated  in  the  New  Hampshire  constitution  of  1 784. 

A  senate  to  be  elected  by  the  lower  house  from  persons  nomi- 
nated from  each  State.     (Randolph's  Plan,  1787.) 

A  senate  chosen  by  the  lower  house  to  represent  each  State, 
and  to  be  divided  into  classes  so  that  the  terms  of  service  shall 
not  expire  at  the  same  time.     (Pinckney's  Plan,  1787.) 

128 


Evolution  from  the  Charters 

A  senate  composed  of  two  senators  from  each  State  elected  by 
the  legislatures  of  the  States,  and  divided  into  classes  so  that  one- 
third  may  be  chosen  every  second  year.     (The  Constitution.) 

5.  Presiding  Officer  of  the  Senate. 

In  colonial  times,  when  the  council  was  a  body  to 
assist  and  advise  the  governor,  he  was  naturally  .the  pre- 
siding officer  of  its  proceedings,  without  any  provision 
to  that  effect  in  the  charter.  But  when  the  New  Jersey 
constitution  of  1776  was  framed,  in  which  the  council 
was  an  upper  house  of  the  legislature,  it  was  thought 
necessary,  for  the  first  time,  to  provide  it  in  a  formal 
way  with  a  chairman  ;  and  the  governor  was  made  its 
president,  with  the  privilege  given  the  council  to  choose 
a  vice-president,  who  should  act  in  the  absence  of  the 
governor. 

The  New  York  constitution  of  1777  made  the  lieu- 
tenant-governor of  the  State  the  presiding  officer  of  the 
senate,  with  a  casting  vote  in  case  of  an  equal  division  ; 
and  this  plan  was  followed  in  the  National  Constitution, 
which  makes  the  Vice-President  of  the  United  States 
president  of  the  Senate,  but  with  no  vote  "  unless  they 
be  equally  divided." 

Between  the  time  of  the  New  York  constitution  of 
1777  and  the  National  Constitution  of  1787  the  rejected 
constitution  of  Massachusetts  of  1778  and  the  New 
Hampshire  constitution  of  1784  both  gave  the  presi- 
dency of  the  senate  to  the  governor. 

"  That  the  Council  and  Assembly  jointly,  at  their  first  meeting 
after  each  annual  election,  shall,  by  a  majority  of  votes,  elect 
some  fit  person  within  the  Colony,  to  be  Governor  for  one  year, 
9  129 


Evolution  of  the  Constitution 

who  shall  be  constant  President  of  the  Council,  and  have  a  cast- 
ing vote  in  their  proceedings  ;  and  that  the  Council  themselves 
shall  choose  a  Vice-President  who  shall  act  as  such  in  the  ab- 
sence of  the  Governor."     (New  Jersey  Constitution  of  1776.) 

"Such  heutenant  governor  shall  by  virtue  of  his  office  be 
president  of  the  Senate,  and  upon  an  equal  division  have  a  cast- 
ing voice  in  their  decisions."     (New  York  constitution  of  1777.) 

"  The  governor  shall  be  president  of  the  Senate."  (Rejected 
Constitution  of  Massachusetts  of  1778.) 

"The  president  of  the  state  shall  preside  in  the  senate,  shall 
have  a  vote  equal  with  any  other  member  ;  and  shall  also  have 
a  casting  vote  in  case  of  a  tie."  (New  Hampshire  Constitution 
of  1784.) 

"  The  vice  president  of  the  United  States  shall  be  president 
of  the  senate,  but  shall  have  no  vote  unless  they  be  equally 
divided."     (The  Constitution.) 

6.  Freedom  of  Debate. 

Freedom  of  speech  in  a  legislative  body  seems  not  to 
have  needed  any  safeguards  in  colonial  times,  for  only 
one  of  the  documents,  the  Concessions  of  West  Jersey 
of  1 669,  contains  any  provision  for  it  If  the  right  had 
been  much  interfered  with  by  the  governors  or  the  Crown, 
it  is  probable  that  some  of  the  constitutions,  like  those 
of  Pennsylvania  and  Connecticut,  which  were  made  by 
the  people  themselves,  would  have  had  a  provision  for 
its  protection.  The  right  was  secured  for  the  British 
Parliament  by  a  statute  passed  in  the  first  year  of  the 
reign  of  William  and  Mary. 

The  Concessions  of  West  Jersey,  however,  miss  the 
important  point  in  the  right,  and  merely  provide  that 
every  member  of  the  assembly  shall  have  liberty 
of  speech,  which  is  too  general.     The  protection  the 

J30 


Evolution  from  the  Charters 

member  needs  is  that  he  shall  not  be  called  to  account 
by  any  power  outside  of  the  legislature  for  what  he  says 
at  a  meeting  of  the  legislature.  The  legislature  itself 
may  discipline  him  for  improper  conduct  or  language 
at  its  meeting,  but  no  outside  power  should  be  able  to 
punish  him.  This  was  provided  for  in  the  Maryland 
constitution  of  1776,  as  in  the  statute  of  William  and 
Mary,  and,  after  passing  through  five  or  six  documents, 
the  provision  appeared  in  the  Constitution.  It  is  one 
of  the  few  provisions  that  can  be  traced  directly  to  the 
forms  of  the  British  government 

' '  That  irf  every  general  free  assembly  every  respective  mem- 
ber hath  liberty  of  speech."     (Concessions  of  West  Jersey,  1669.) 

• '  That  freedom  of  speech  and  debates,  or  proceedings  in  the 
Legislature,  ought  not  to  be  impeached  in  any  other  court  or 
judicature."     (Maryland  Declaration  of  Rights  of  1776.) 

'  •  Freedom  of  speech  and  debate  in  Congress  shall  not  be  im- 
peached or  questioned  in  any  court  or  place  out  of  Congress." 
(Articles  of  Confederation,  1778.) 

"  Freedom  of  debate  and  speech  shall  be  allowed  in  Congress, 
nor  shall  anything  done  in  Congress  be  impeached  or  questioned 
out  of  it."     (Drayton's  Articles  of  Confederation,  1778.) 

"The  freedom  of  deliberation,  speech,  and  debate,  in  either 
house  of  the  legislature,  is  so  essential  to  the  rights  of  the  people, 
that  it  cannot  be  the  foundation  of  any  accusation  or  prosecution, 
action  or  complaint,  in  any  other  court  or  place  whatsoever." 
(Massachusetts  Constitution  of  1780.) 

The  above  provision  from  the  Massachusetts  constitution  of 
1780  is  repeated  in  the  New  Hampshire  constitution  of  1784. 

The  Vermont  constitution  of  1786  repeats  the  provision  g^ven 
above  from  the  Massachusetts  constitution  of  1780. 

"Freedom  of  speech  and  debate  in  the  Legislature  shall  not 
be  impeached,  or  questioned,  in  any  place  out  of  it."  (Pinck- 
ney's  Plan,  1787.) 

»3« 


Evolution  of  the  Constitution 

"For  any  speech  or  debate  in  either  house,  they  [senators 
and  representatives]  shall  not  be  questioned  in  any  other  place." 
(The  Constitution.) 

7.  Privilege  from  Arrest. 

The  colonial  charters  and  constitutions  contained  no 
provision  protecting  a  member  of  the  legislature  from 
arrest  It  seems  to  have  been  assumed  that  the  privi- 
lege existed  as  a  matter  of  course  ;  but  in  at  least  one 
instance  it  was  violated. 

In  1705,  Biles,  a  member  of  the  Pennsylvania  assem- 
bly, was  arrested  during  the  session  of  the  assembly  for 
speaking  contemptuously  of  the  governor.  He  pleaded 
his  privilege  as  a  member,  but  the  court  overruled  the 
plea.  The  assembly  passed  a  resolution  condemning 
the  sheriff  and  judges  for  violating  the  privilege  of  the 
house,  and  the  governor  thereupon  called  the  assembly 
before  him  and,  after  addressing  them  in  a  most  abusive 
speech,  adjourned  them.  There  seems  to  have  been  no 
definite  settlement  of  the  question  on  this  occasion,  but 
the  general  opinion  was  probably  in  favor  of  the  exist- 
ence of  the  privilege,  for  the  constitutions  of  1776  are 
usually  silent  about  it 

"  The  members  of  Congress  shall  be  protected  in  their  persons 
from  arrests  and  imprisonments  during  the  time  of  their  going  to 
and  from,  and  attendance  on,  Congress,  except  for  treason,  felony, 
or  breach  of  the  peace."     (Articles  of  Confederation.  1778.) 

"  The  delegates  shall  be  protected  in  their  persons  from  arrests 
and  imprisonments,  except  for  treason,  felony,  or  breach  of  the 
peace."     (Drayton's  Articles  of  Confederation,  1778.) 

"And  no  member  <jf  the  house  of  representatives  shall  be 
arrested,  or  held  to  bail  on  mesne  process,  during  his  going  unto, 

132 


Evolution  from  the  Charters 

returning  from,  or  his  attending  the  general  assembly."     (Massa- 
chusetts Constitution  of  1780.) 

The  above  provision  from  the  Massachusetts  constitution  of 
1780  is  repeated  in  the  New  Hampshire  constitution  of  1784. 

"The  members  of  both  houses  shall,  in  all  cases,  except  for 
treason,  felony,  or  breach  of  the  peace,  be  free  from  arrest  during 
their  attendance  on  Congress,  and  in  going  to  and  returning  from 
it."     (Pinckney's  Plan,  1787.) 

"They  [senators  and  representatives]  shall  in  all  cases,  ex- 
cept treason,  felony,  and  breach  of  the  peace,  be  privileged  from 
arrest  during  their  attendance  at  the  session  of  their  respective 
houses,  and  in  going  to  and  returning  from  the  same."  (The 
Constitution.) 

8.    MoNEY-BlLLS. 

The  principle  that  bills  for  raising  money  from  the 
people  should  originate  in  that  part  of  the  legislature 
which  most  fully  represented  the  people — in  England 
the  House  of  Commons — was  familiar  to  the  colonists, 
and  it  may  be  admitted  that  their  ideas  on  this  subject 
were  taken  directly  from  the  forms  of  the  British 
government 

None  of  the  colonial  charters  or  constitutions  con- 
tained any  clause  specially  securing  this  right,  but  the 
colonists  always  insisted  that  it  belonged  to  them  in  all 
their  legislative  bodies  as  a  matter  of  course  because 
they  were  free-bom  Englishmen.  In  Pennsylvania,  es- 
pecially, they  contended  for  it  against  their  proprietors 
and  deputy-governors  with  the  greatest  persistency,  and 
insisted  on  the  right  in  its  fullest  extent, — namely,  that 
money-bills  should  not  only  originate  in  the  lower  house 
of  assembly,  but  should  also  be  either  accepted  or  re- 
jected by  the  council  or  upper  house  without  any  attempt 
to  amend  them.     Some  of  the  constitutions  of   1776 

»33 


Evolution  of  the  Constitution 

adopted  this  extreme  view,  which  was  modified  in  the 
National  Constitution  by  allowing  the  Senate  to  propose 
amendments,  as  in  the  case  of  other  bills. 

"That  all  bills,  resolves,  or  votes  for  raising,  levying,  and 
collecting  money  originate  in  the  house  •  of  representatives." 
(New  Hampshire  Constitution  of  1776.) 

"  All  money-bills  for  the  support  of  government  shall  originate 
in  the  general  assembly,  and  shall  not  be  altered  or  amended  by 
the  legislative  council,  but  may  be  rejected  by  them."  (South 
Carolina  Constitution  of  1776.) 

"  All  laws  shall  originate  in  the  house  of  delegates,  to  be  ap- 
proved of  or  rejected  by  the  senate,  or  to  be  amended  with  the 
consent  of  the  house  of  delegates  ;  except  money-bills,  which  in 
no  instance  shall  be  altered  by  the  senate,  but  wholly  approved 
or  rejected."     (Virginia  Constitution  of  1776.) 

"That  the  council  shall  not  prepare  or  alter  any  money-bill, 
which  shall  be  the  privilege  of  the  assembly."  (New  Jersey 
Constitution  of  1776.) 

"All  money-bills  for  the  support  of  government  shall  origi- 
nate in  the  house  of  assembly,  and  may  be  altered,  amended,  or 
rejected  by  the  legislative  council."  (Delaware  Constitution  of 
1776.) 

"The  house  of  delegates  may  originate  all  money-bills." 
(Maryland  Constitution  of  1776.) 

"  Excepting  bills  and  resolves  levying  and  granting  money  or 
other  property  of  the  State,  which  shall  originate  in  the  house 
of  representatives  only,  and  be  concurred  or  non-concurred  in 
whole  by  the  senate."  (Rejected  Constitution  of  Massachusetts 
of  1778.) 

' '  That  all  money-bills  for  the  support  of  the  government  shall 
originate  in  the  house  of  representatives,  and  shall  not  be  altered 
or  amended  by  the  senate,  but  may  be  rejected  by  them," 
(South  Carolina  Constitution  of  1778.) 

"And  all  acts,  resolves,  or  votes,  except  grants  of  money, 
lands,  or  other  things,  may  originate  in  either  house ;  but  such 

134 


Evolution  from  the  Charters 

g^rants  shall  originate  in  the  house  of  representatives  only." 
(Rejected  Constitution  of  New  Hampshire  of  1778.) 

"All  money-bills  shall  originate  in  the  house  of  representa- 
tives ;  but  the  senate  may  propose  or  concur  with  amendments, 
as  on  other  bills."     (Massachusetts  Constitution  of  1780.) 

The  above  provision  from  the  Massachusetts  constitution  of 
1780  is  repeated  in  the  New  Hampshire  constitution  of  1784. 

"  All  money-bills  of  every  kind  shall  originate  in  the  house  of 
delegates,  and  shall  not  be  altered  by  the  senate."  (Pinckney's 
Plan,  1787.) 

"All  bills  for  raising  revenue  shall  originate  in  the  house  of 
representatives  ;  but  the  senate  may  propose  or  concur  v/ith 
amendments,  as  on  other  bills."     (The  Constitution.) 

9.  Adjournment  of  Congress. 

The  adjournment  of  a  legislative  body,  either  of  its 
own  volition  or  by  the  action  of  a  king  or  governor,  is 
a  function  requiring  very  careful  regulation,  because  the 
power  to  adjourn  may  be  the  bulwark  of  a  people's 
liberties  or  the  means  of  inflicting  the  greatest  tyranny 
upon  them. 

If  a  king  or  a  governor  may  keep  an  assembly  sitting 
as  long  as  he  pleases,  or  dismiss  them  when  he  pleases, 
he  has  the  means  of  wearing  out  their  patience,  forcing 
them  to  pass  the  legislation  he  wants,  or  preventing 
them  from  passing  any  legislation.  On  the  other  hand, 
a  legislature  may  sit  too  long  and  become  a  public 
menace,  or,  if  it  consists  of  two  branches,  one  may 
adjourn  in  order  to  defeat  the  intentions  of  the  other. 

It  may  also  be  very  important,  under  certain  circum- 
stances, for  a  legislature  to  have  the  power  of  sitting 
indefinitely.  At  the  time  of  the  Revolution,  a  party 
in  the  Pennsylvania  legislature,  wishing  to  destroy  the 

135 


Evolution  of  the  Constitution 

government  of  the  conimonwealth  as  it  then  existed, 
absented  themselves  every  day,  so  that  a  quorum  could 
not  be  formed.  The  minority  attempted  to  hold  meet- 
ings, but,  as  they  could  not  pass  a  valid  act,  the  legis- 
lature finally  perished,  and  there  was  a  revolution  in  the 
government.  If  the  minority  had  had  power  to  adjourn 
from  day  to  day  and  to  compel  the  attendance  of  absent 
members,  they  could  have  continued  the  life  of  the . 
legislature  until  a  quorum  had  been  collected. 

The  colonists  had  much  experience  with  all  these 
questions,  and  were  greatly  troubled  by  some  of  them  ; 
and  the  clauses  finally  adopted  in  the  National  Consti- 
tution were  as  delicate  a  balancing  of  power  between  the 
President  and  Congress  and  between  the  two  branches 
of  Congress  as  could  have  been  devised. 

The  summary  given  below  from  the  charters  and  con- 
stitutions shows  that  in  1638  the  right  of  the  legislature 
to  adjourn  when  it  pleased  was  fully  conceded  in  the 
Fundamental  Orders  of  Connecticut  of  that  year,  which 
also  gave  the  governor  and  his  council  power  to  call 
the  legislature  together  in  an  emergency, — a  power 
afterwards  given  to  the  President  in  the  National  Con- 
stitution. After  that  the  legislature's  power  to  adjourn 
was  occasionally  curtailed  and  given  to  the  governor  or 
the  king.  In  1754,  in  Franklin's  plan  of  union,  a  sort 
of  balancing  of  the  power  between  the  executive  and 
the  legislature  first  appears.  The  executive  may  ap- 
parently adjourn  them,  but  not  for  more  than  six  weeks 
without  their  consent  or  the  special  command  of  the 
Crown  ;  nor  can  they  be  compelled  to  sit  longer  than 
six  weeks  except  by  the  same  consent  or  command. 

136 


Evolution  from  the  Charters 

This  is  also  the  first  appearance  of  a  provision  to  prevent 
an  assembly  from  being  compelled  to  sit  too  long. 

In  the  New  Hampshire  constitution  of  1776  a  pro- 
vision appears  to  prevent  one  branch  of  a  legislature 
from  adjourning  without  the  consent  of  the  other ;  and 
this  is  repeated  in  various  forms  until  it  appears  in  the 
National  Constitution. 

In  the  same  year,  i  'j'jdy  the  South  Carolina  constitu- 
tion provides  that  the  executive  may  call  the  legislature 
before  the  time  to  which  they  stand  adjourned,  when 
urgent  necessity  requires  it  This  is  also  repeated  until 
it  appears  in  the  National  Constitution,  and  it  is  a  pro- 
vision often  made  use  of  and  considered  of  much 
value. 

In  the  New  Jersey  constitution  of  i  yj^  appeared  the 
provision  that  the  two  branches  must  meet  at  the  same 
time.  The  Delaware  constitution  of  1776  provides  that 
they  must  meet  at  the  same  time  and  place  ;  and  the 
Maryland  constitution  of  the  same  year  provides  that, 
if  the  two  branches  disagree  as  to  the  time  to  which 
they  shall  adjourn,  the  governor  may  decide  the  ques- 
tion,— both  of  which  provisions  are  to  be  found  in  the 
National  Constitution. 

General  court  adjourned  only  by  consent  of  majority.  Gov- 
ernor and  council  may  call  the  legislature  for  a  special  occasion. 
(Fundamental  Orders  of  Connecticut,  1638.) 

Assembly  may  meet  and  adjourn  at  pleasure.  (Concessions  of 
East  Jersey,  1665.)  Repealed,  and  the  right  to  adjourn  given  to 
the  governor  and  council,  in  1672. 

The  palatine's  court  (consisting  of  the  palatine  and  eight 
others)  may  dissolve  the  parliament  at  pleasure.  (Locke's  Caro- 
lina Constitution  of  1669.) 

«37 


Evolution  of  the  Constitution 

Assembly  may  meet  and  adjourn  at  pleasure.  (Concessions 
of  West  Jersey,  1677.) 

Governor  and  council  may  adjourn  the  assembly.  (Pennsyl- 
vania Frame  of  April  2,  1683.) 

Governor  may  adjourn  the  assembly.  (Massachusetts  Charter 
of  1691.) 

Governor  and  council  may  adjourn  the  assembly.  (Pennsyl- 
vania Frame  of  1696.) 

Assembly  may  adjourn  at  pleasure.  (Pennsylvania  Charter  of 
Privileges,  1701.) 

Assembly  may  adjourn  for  two  days,  but  not  longer  without 
the  consent  of  the  governor.  (Explanatory  Charter  of  Massachu- 
setts of  1726.) 

Grand  council  not  to  be  adjourned  or  continued  sitting  longer 
than  six  weeks  without  their  own  consent  or  the  special  command 
of  the  Crown.     (Franklin's  Plan  of  1754.) 

Council  not  to  be  adjourned  or  continued  sitting  longer  than 
six  weeks  without  their  own  consent.      (Hutchinson's  Plan  of 

1754.) 

Neither  branch  of  the  legislature  to  adjourn  longer  than  from 
Saturday  to  Monday  without  the  consent  of  the  other.  (New 
Hampshire  Constitution  of  1776.) 

Either  branch  of  the  legislature  may  adjourn  at  pleasure,  but 
the  president,  when  necessary,  may  call  them  before  the  time  to 
which  they  stand  adjourned.  Sixty-nine  members  to  be  a  quorum, 
but  the  speaker  and  any  seven  members  may  adjourn  from  day 
to  day.     (South  Carolina  Constitution  of  1776.) 

The  above  is  substantially  repeated  in  the  Virginia  constitu- 
tion of  1776. 

The  assembly  may  adjourn  at  pleasure,  but  the  council  must 
meet  at  the  same  time  as  the  assembly.  (New  Jersey  Constitu- 
tion of  1776.) 

Either  branch  of  the  legislature  may  adjourn  at  pleasure,  but 
the  president  may,  with  the  advice  of  his  council  or  on  applica- 
tion of  a  majority  of  either  house,  call  them  before  the  time  to 
which  they  stand  adjourned,  and  the  two  houses  must  sit  at  the 
same  time  and  place.     (Delaware  Constitution  of  1776.) 

138 


Evolution  from  the  Charters 

Legislature  may  adjourn  at  pleasure,  but  the  president,  with 
the  council,  may  call  them  before  the  time  to  which  they  stand 
adjourned.     (Pennsylvania  Constitution  of  1776.) 

Either  branch  of  the  legislature  may  adjourn  at  pleasure,  but 
if  they  adjourn  to  different  days  the  governor  may  appoint  some 
day  between,  and  the  governor  may,  with  the  advice  of  his  coun- 
cil, call  them  before  the  time  to  which  they  shall  in  any  manner 
be  adjourned.     (Maryland  Constitution  of  1776.) 

Either  branch  of  the  legislature  may  adjourn  at  pleasure. 
(North  Carolina  Constitution  of  1776.) 

Governor,  with  advice  of  council,  may  call  assembly  before  the 
time  to  which  they  stand  adjourned.     (Georgia  Constitution  of 

^777') 

Governor  may  convene  both  branches  on  extraordinary  occa- 
sions and  may  prorogue  them  for  not  more  than  sixty  days  in  a 
year,  and  neither  branch  may  adjourn  for  more  than  two  days 
without  the  consent  of  the  other.     (New  York  Constitution  of 

^777-) 

The  Vermont  constitution  of  1777  repeats  the  provision  from 
the  Pennsylvania  constitution  of  1 776. 

The  council  may  at  their  pleasure  require  the  governor  to  ad- 
journ them,  but  neither  branch  shall  adjourn  itself  for  more  than 
two  days  at  one  time.  The  governor  may  call  the  legislature  to- 
gether, if  necessary,  before  the  time  to  which  they  stand  adjourned. 
(Rejected  Constitution  of  Massachusetts  of  1778.) 

The  legislature  may  adjourn  at  pleasure,  but  neither  branch  of 
it  may  adjourn  for  longer  than  three  days  without  the  consent  of 
the  other.  The  governor  may,  with  the  advice  of  the  council,  call 
the  legislature  before  the  time  to  which  they  stand  adjourned. 
(South  Carolina  Constitution  of  1778.) 

Neither  branch  of  the  legislature  may  adjourn  for  more  than 
two  days  without  the  consent  of  the  other,  and  the  president,  with 
the  advice  of  three  or  more  of  the  council,  may  call  the  legislature 
before  the  time  to  which  they  stand  adjourned.  (Rejected  Con- 
stitution of  New  Hampshire  of  1778.) 

The  legislature  may  at  their  pleasure  require  the  governor  to 
adjourn  them.     The  House  of  Representatives  may  adjourn  for 

139 


Evolution  of  the  Constitution 

not  more  than  two  days  at  a  time,  and,  in  case  of  disagreement 
between  the  two  branches  with  regard  to  adjournment,  the  gov- 
ernor may,  with  the  advice  of  the  council,  adjourn  them  not  ex- 
ceeding ninety  days,  and  he  may  in  cases  of  necessity  call  them 
before  the  time  to  which  they  stand  adjourned.  (Massachusetts 
Constitution  of  1780.) 

The  Congress  may  adjourn  to  any  time  within  the  year  so  that 
no  period  of  adjournment  be  longer  than  six  months.  (Articles 
of  Confederation,  1778.) 

The  above  is  substantially  repeated  in  Drayton's  Articles  of 
Confederation,  1778. 

The  provision  of  the  Massachusetts  constitution  of  1780  is  sub- 
stantially repeated  in  the  New  Hampshire  constitution  of  1 784. 

Neither  house,  without  the  consent  of  the  other,  shall  adjourn 
for  more  than  days  nor  to  any  place  but  where  they  are 

sitting.     (Pinckney's  Plan,  1787.) 

"  The  Congress  shall  assemble  at  least  once  in  every  year.  .  .  . 
A  majority  of  each  [house]  shall  constitute  a  quorum  to  do 
business  ;  but  a  smaller  number  may  adjourn  from  day  to  day, 
and  may  be  authorized  to  compel  the  attendance  of  absent  mem- 
bers. .  .  .  Neither  house  during  the  session  of  congress  shall, 
without  the  consent  of  the  other,  adjourn  for  more  than  three  days 
nor  to  any  other  place  than  that  in  which  the  two  houses  shall  be 
sitting.  .  .  .  He  [the  President]  may,  on  extraordinary  occasions, 
convene  both  houses  or  either  of  them,  and,  in  case  of  disagree- 
ment between  them  with  respect  to  the  time  of  adjournment,  he 
may  adjourn  them  to  such  time  as  he  shall  think  proper."  (The 
Constitution.) 

10.  War  Power. 
The  power  to  declare  war  and  make  peace  is  a  most 
important  function  of  government ;  for  on  it  may  de- 
pend the  existence  or  honor  of  the  nation.  Where  the 
power  should  be  lodged,  whether  with  the  executive 
or  with  the  legislature,  or  with  both,  has  been  a  much 
debated  question  in  our  history. 

140 


Evolution  from  the  Charters 

In  the  early  colonial  governments  it  was  often  given 
to  everybody.  In  several  of  the  charters,  as  the  sum- 
mary shows,  the  whole  company  in  general,  and  the 
governor  and  every  other  officer  in  particular,  seem  to 
have  been  endowed  with  authority  to  make  war  at  any 
moment  This  was  natural  enough,  because  in  primi- 
tive governments  in  wild  countries  the  war  power  is 
often  the  all-important  function  which  overshadows  all 
others. 

As  time  went  on,  however,  there  seems  to  have  been 
considerable  doubt  in  the  minds  of  constitution-framers 
as  to  who  should  be  responsible  for  war  and  peace. 
The  tendency  to  give  the  legislature  a  share  in  the  re- 
sponsibility is  first  shown  in  the  Rhode  Island  charter 
of  1663.  In  the  Concessions  of  East  Jersey  of  1665 
the  legislature  alone  has  the  power,  and  this  method 
was  adopted  in  the  National  Constitution,  where  the 
war  power  is  given  to  Congress  alone.  But  between 
the  Concessions  of  East  Jersey  and  the  Constitution  it 
vacillated,  sometimes  being  given  to  the  governor  alone, 
and  sometimes  to  the  governor  and  the  legislature. 

The  fundamental  principle  underlying  the  grant  of 
the  power  seems  to  be  that  it  should  be  given  to  what- 
ever body  is,  in  the  fullest  sense  of  the  word,  the  nation. 
In  England  it  was  given  to  the  king  because  he  was  the 
nation  ;  and  in  the  United  States,  where  the  people  are 
the  nation,  it  is  given  to  Congress,  which  represents  the 
people. 

But,  as  the  President  controls  the  army  and  navy  and 
the  action  of  diplomatic  agents,  he  can  easily,  by  an 
overt  act,  commit  the  country  to  a  war  which  Congress 

141 


Evolution  of  the  Constitution 

would  be  bound  to  accept ;  as  was  done  in  the  case  of 
our  war  with  Mexico.  In  theory  Congress  has  the 
power,  but  the  real  power  is  with  one  man  as  fully  as  it 
was  in  Sir  Walter  Raleigh's  charter  of  1584. 

War  power  given  to  Sir  Walter  Raleigh.     (Sir  Walter  Raleigh's 

Charter,  1584.) 

Given  generally  to  the  two  colonies  of  Virginia.     (Virginia 

Charter  of  1606.) 

Given  generally  to  the  company,  governor,  and  other  officers. 

(Virginia  Charter  of  1609.) 

Given   generally  to   council,    governor,    and    other    officers. 

(Charter  of  New  England  of  1620.) 

Given  generally.     (Massachusetts  Charter  of  1629.) 

Given  to  the  proprietor.     (Maryland  Charter  of  1632.) 

To  the  proprietor.     (Grant  of  Maine  of  1639.) 

To   the    governor    and    officers.      (Connecticut    Charter   of 

1662.) 

To  the  governor,  assistants,  and  general  assembly  ;  and,  when 

the  general  assembly  is  not  sitting,  to  the  governor  and  assistants. 

(Rhode  Island  Charter  of  1663.) 

To  the  proprietor.     (Carolina  Charter  of  1663.) 

To  the  general  assembly.     (Concessions  of  East  Jersey,  1665.) 

To  the  proprietor.     (Carolina  Charter  of  1665.) 

To  the  grand  council.     (Locke's  Constitution  of  1669.) 

To  the  council.     (Commission  for  New  Hampshire  of  1680.) 

To  the  proprietor.     (Pennsylvania  Charter  of  1681.) 

To  the  governor.     (Massachusetts  Charter  of  1691.) 

To  the  corporation.     (Georgia  Charter  of  1732.) 

To  the  president-general  and  grand  council.     (Franklin's  Plan 

of  Union  of  1754.) 

To  the  president  and  council.     (Hutchinson's  Plan  of  1754.) 
To  Congress.     (Franklin's  Articles  of  Confederation,  1775.) 
To  the  president  and  the  legislature.     (South  Carolina  Consti- 
tution of  1776.) 

To  the  governor.     (South  Carolina  Constitution  of  1778.) 

142 


Evolution  from  the  Charters 

To  Congress  ;  but  a  State  may  engage"  in  war  when  actually 
invaded.     (Articles  of  Confederation,  1778.) 

To  Congress.     (Drayton's  Articles  of  Confederation,  1778.) 
To  the  governor.     (Massachusetts  Constitution  of  1780.) 
To  the  governor.     (New  Hampshire  Constitution,  1784.) 
To  the  Senate.     (Pinckney's  Plan,  1787.) 
To  Congress.     (The  Constitution.) 

II.  Speakership  and  Procedure  of  Congress. 
A  legislative  body  would  seem  to  have  a  natural  and 
inherent  right  to  judge  of  the  qualifications  and  elections 
of  its  own  members,  appoint  its  own  speaker  and  other 
officers,  and  regulate  its  own  methods  of  procedure, 
after  the  manner  of  the  British  House  of  Commons. 
The  charters  granted  by  the  Crown  made  no  regulation 
of  these  matters,  and  in  some  of  the  Colonies  the  gov- 
ernor claimed  that  his  approval  was  necessary  before 
the  speaker  elected  by  the  assembly  could  assume  his 
office.  There  were  several  contests  in  Massachusetts 
on  this  question,  and  in  the  end  the  Explanatory  Char- 
ter of  1726  confirmed  the  necessity  of  the  governor's 
consent  in  the  election  of  a  speaker.  (Follett's  Speaker 
of  the  House  of  Representatives,  12.)  But  whenever 
in  colonial  times  the  people  prepared  a  constitution  for 
themselves  free  from  interference  by  the  Crown,  they 
usually  thought  it  necessary  to  provide  for  the  exercise 
of  this  right  by  the  legislature,  and  the  constitutions  of 
1776  carried  on  the  development  to  the  National  Con- 
stitution. 

"  It  is  ordered  and  decreed,  that  the  deputy es  thus  chosen  shall 
haue  power  and  liberty  to  appoynt  a  tyme  and  a  place  of  meeting 

»43 


Evolution  of  the  Constitution 

togather  before  any  Generall  Courte  to  aduise  and  consult  of  all 
such  things  as  may  concerne  the  good  of  the  publike,  as  also  to 
examine  their  owne  Elections,  whether  according  to  the  order, 
and  if  they  or  the  gretest  p'te  of  them  find  any  election  to  be 
illegall  they  may  seclud  such  for  p'sent  fro  their  meeting,  and 
returne  the  same  and  their  resons  to  the  Courte  ;  and  if  yt  proue 
true,  the  Courte  may  fyne  the  p'ty  or  p'tyes  so  intruding  and  the 
Towne,  if  they  see  cause,  and  giue  out  a  warrant  to  goe  to  a  newe 
election  in  a  legall  way,  either  in  p'te  or  in  whole.  ...  It  is  Or- 
dered, sentenced  and  decreed,  that  euery  Generall  Courte,  except 
such  as  through  neglecte  of  the  Gou'nor  and  the  greatest  pne  of 
Magestrats  the  Freemen  themselves  doe  call,  shall  consist  of  the 
Gouernor,  or  some  one  chosen  to  moderate  the  Court,  and  4  other 
Magestrats  at  lest,  w*  the  mayor  p'te  of  the  deputyes  of  the 
seuerall  Townes  legally  chosen  ;  and  in  case  the  Freemen  or 
mayor  p''te  of  the,  through  neglect  or  refusall  of  the  Gouernor 
and  mayor  p'te  of  the  magestrats,  shall  call  a  Courte,  y'  shall 
consist  of  the  mayor  p'te  of  Freemen  that  are  p'sent  or  their 
deputyes,  w"*  a  Moderator  chosen  by  the."  (Fundamental  Orders 
of  Connecticut,  1638.) 

' '  All  questions  to  be  determined  by  both  or  either  of  them 
[council  or  assembly]  that  relate  to  .  .  .  choice  of  officers  .  .  . 
shall  be  resolved  and  determined  by  the  ballot."  (Pennsylvania 
Frame,  April  2,  1683.) 

"And  the  representatives  so  chosen  either  for  council  or  as- 
sembly shall  yield  their  attendance  accordingly  and  be  the  sole 
judges  of  the  regularity  or  irregularity  of  the  elections  of  their 
respective  members."     (Pennsylvania  Frame  of  1696.) 

"  Which  assembly  shall  have  power  to  chuse  a  speaker  and 
other  their  officers,  and  shall  be  judges  of  the  qualifications  and 
elections  of  their  own  members."  (Pennsylvania  Charter  of 
Privileges  of  1701.) 

"Each  house  shall  choose  its  own  speaker,  appoint  its  own 
officers,  settle  its  own  rules  of  proceeding."  (Virginia  Constitu- 
tion of  1776.) 

"  That  the  assembly,  when  met,  shall  have  power  to  choose 
a  speaker  and  other  their  officers  ;  to  be  judges  of  the  qualifica- 

144 


Evolution  from  the  Charters 

tions  and  elections  of  their  own  members."  (New  Jersey  Consti- 
tution of  1776.) 

"Each  house  shall  choose  its  own  speaker,  appoint  its  own 
officers,  judge  of  the  qualifications  and  elections  of  its  own  mem- 
bers, settle  its  own  rules  of  proceedings.  They  may  also  sev- 
erally expel  any  of  their  own  members  for  misbehavior,  but  not 
a  second  time  in  the  same  sessions  for  the  same  offence  if  re- 
elected."    (Delaware  Constitution  of  1776.) 

•  •  The  house  of  representatives  shall  have  power  to  choose 
their  speaker,  the  treasurer  of  the  state  and  their  other  officers, 
judge  of  the  elections  and  qualifications  of  their  own  members. 
They  may  expel  a  member,  but  not  a  second  time  for  the  same 
cause."     (Pennsylvania  Constitution  of  1776.) 

"  That  the  house  of  delegates  shall  judge  of  the  elections  and 
qualifications  of  delegates.  They  may  expel  any  member  for  a 
great  misdemeanor,  but  not  a  second  time  for  the  same  cause. 
Each  house  shall  appoint  its  own  officers  and  settle  its  own  rules 
of  proceeding."     (Maryland  Constitution  of  1776.) 

"That  the  senate  and  house  of  commons,  when  met,  shall 
each  have  power  to  choose  a  speaker  and  other  their  officers  ;  be 
judges  of  the  qualifications  and  elections  of  their  members." 
(North  Carolina  Constitution  of  1776.) 

'  •  The  house  shall  choose  its  own  speaker,  appoint  its  own 
officers  and  settle  its  own  rules  of  proceeding."  (Georgia  Con- 
stitution of  1777.) 

'  •  That  the  assembly  thus  constituted  shall  choose  their  own 
speaker,  be  judges  of  their  own  members."  (New  York  Consti- 
tution of  1777.) 

The  Vermont  constitution  of  1777  repeats  the  provision  given 
above  from  the  Pennsylvania  constitution  of  1 776. 

' '  The  congress  shall  have  power  to  make  rules  for  regfu- 
lating  their  proceedings."  (Drayton's  Articles  of  Confederation, 
1778.) 

"  The  senate  and  house  of  representatives  shall  be  two  sepa- 
rate and  distinct  bodies,  each  to  appoint  its  own  officers  and  settle 
its  own  rules  of  proceedings."  (Rejected  Constitution  of  Massa- 
chusetts of  1778.) 

w  145 


Evolution  of  the  Constitution 

"The  council  shall  choose  their  president  and  the  house  of 
representatives  shall  choose  their  speaker.  The  council  and 
house  of  representatives,  respectively,  shall  determine  all  dis- 
puted elections  of  their  own  members  and  regulate  their  own 
proceedings."      (Rejected  Constitution  of  New  Hampshire  of 

1778.) 

"The  house  of  representatives  shall  be  the  judge  of  the  re- 
turns, elections,  and  qualifications  of  its  own  members,  as  pointed 
out  in  the  constitution  ;  shall  choose  their  own  speaker,  appoint 
their  own  officers,  and  settle  the  rules  and  order  of  proceeding  in 
their  own  house."     (Massachusetts  Constitution  of  1780.) 

The  above  provision  from  the  Massachusetts  constitution  of 
1780  is  repeated  in  the  New  Hampshire  constitution  of  1784. 

"They  [the  general  assembly]  shall  have  power  to  choose 
their  speaker  and  other  necessary  officers,  judge  of  the  elections 
and  qualifications  of  their  own  members  ;  they  may  expel  mem- 
bers, but  not  for  causes  known  to  their  constituents  antecedent  to 
their  election."     (Vermont  Constitution  of  1786.) 

"The  house  of  delegates  shall  choose  its  own  officers.  The 
senate  shall  choose  its  own  officers.  The  house  of  delegates 
shall  be  the  judges  of  the  election,  returns,  and  qualifications  of 
their  members.  In  each  house  a  majority  shall  constitute  a 
quorum  to  do  business.  Both  houses  shall  keep  journals  of  their 
proceedings  and  publish  them,  except  on  secret  occasions,  and 
the  yeas  and  nays  may  be  entered  thereon  at  the  desire  of  one  of 
the  members  present."     (Pinckney's  Plan,  1787.) 

"The  house  of  representatives  shall  choose  their  speaker  and 
other  officers.  .  .  .  Each  house  shall  be  the  judge  of  the  elec- 
tions, returns,  and  qualifications  of  its  own  members.  .  .  . 
Each  house  may  determine  the  rules  of  its  proceedings,  punish 
its  members  for  disorderly  behavior,  and,  with  the  concurrence 
of  two-thirds,  expel  a  member.  Each  house  shall  keep  a  journal 
of  its  proceedings  and  from  time  to  time  publish  the  same,  except- 
ing such  parts  as  may  in  their  judgment  require  secrecy  ;  and 
the  yeas  and  nays  of  the  members  of  either  house  on  any  ques- 
tion shall,  at  the  desire  of  one-fifth  of  those  present,  be  entered 
on  the  journal."     (The  Constitution.) 

146 


Evolution  from  the  Charters 

12.  Impeachment. 

The  first  appearance  of  the  power  to  remove  and 
punish  an  officer  of  government  for  misconduct  is  in 
the  Fundamental  Orders  of  Connecticut  of  1638,  but  it 
is  not  until  we  reach  the  Rhode  Island  charter  of  1663 
that  this  power  is  called  by  its  proper  name, — impeach- 
ment 

The  methods  of  trying  the  impeachment  vary,  but  a 
strong  tendency  soon  appears  to  have  the  assembly 
bring  the  impeachment  and  the  council  or  senate  try 
it  In  the  Virginia  constitution  of  1776  the  person 
convicted  is  to  be  disabled  from  holding  office,  and 
may  also  be  punished  as  the  law  shall  direct,  a  descrip- 
tion of  the  method  of  punishment  which  had  not  ap- 
peared before.  This  was  repeated  in  the  Delaware 
constitution  of  i  TJ^.  In  the  New  York  constitution  of 
1777  the  manner  of  punishment  was  still  more  precisely 
detailed.  Judgment  in  impeachment  was  to  extend  no 
farther  than  removal  from  office  and  disqualification 
from  holding  office  under  the  State,  but  the  guilty  per- 
son might,  in  addition,  be  subject  to  indictment  and 
punishment  in  the  ordinary  courts  according  to  the  laws 
of  the  land.  In  the  Massachusetts  constitution  of  1780 
the  senators  are  to  be  sworn  to  try  the  impeachment 
according  to  the  evidence.  All  these  provisions,  in- 
cluding the  requirement  of  a  two-thirds  vote  to  convict, 
were  embodied  in  the  National  Constitution,  and  in 
almost  the  same  language  in  which  they  had  appeared 
in  the  earlier  documents. 

The  assembly  is  given  power  to  deal  with  any  magistrate  or 

147 


Evolution  of  the  Constitution 

other  person  for  any  misdemeanor.  (Fundamental  Orders  of 
Connecticut,  1638.) 

The  assembly  may  remove  any  officers  of  the  company  for 
misdemeanors.     (Connecticut  Charter  of  1662.) 

The  above  is  repeated  in  the  Rhode  Island  charter  of  1663. 

The  general  assembly  may  impeach,  and  the  provincial  council 
give  judgment  upon  the  impeachment.  (Pennsylvania  Frame  of 
April  2,  1683.) 

The  above  is  repeated  in  the  Pennsylvania  Frame  of  1683. 

The  assembly  may  impeach.  (Pennsylvania  Charter  of 
Privileges,  1701.) 

The  house  of  delegates  may  impeach  the  governor  when  out 
of  office,  and  all  others  guilty  of  maladministration  ;  the  impeach- 
ment to  be  tried  in  the  general  court  according  to  law.  When 
judges  of  the  general  court  are  impeached,  the  impeachment  to 
be  tried  in  the  court  of  appeals.  The  guilty  to  be  disabled  from 
holding  any  office  under  government,  and  to  be  punished  as  the 
law  shall  direct.     (Virginia  Constitution  of  1776.) 

The  assembly  may  impeach  and  the  council  try  the  impeach- 
ment.    (New  Jersey  Constitution  of  1776.) 

The  assembly  may  impeach  the  president  when  out  of  office, 
and  all  others  guilty  of  maladministration,  and  the  council  try 
the  impeachment.  The  guilty  to  be  disabled  from  holding  any 
office  under  government,  and  to  be  punished  as  the  law  shall 
direct.     (Delaware  Constitution  of  1776.) 

The  general  assembly  may  impeach  and  the  president  and 
council  try  the  impeachment.  (Pennsylvania  Constitution  of 
1776.) 

The  general  assembly  or  grand  jury  may  impeach.  (North 
Carolina  Constitution  of  1776.) 

The  assembly  may  impeach.     (Georgia  Constitution  of  1777.) 

The  assembly  may  impeach  by  a  two-thirds  vote  ;  and  the 
impeachment  be  tried  in  a  court,  to  consist  of  the  president  of 
the  senate,  the  senators,  the  chancellor  and  judges  of  the 
supreme  court ;  no  judgment,  however,  of  the  said  court  to  be 
valid  unless  assented  to  by  two-thirds  of  the  members  of  the 
court.     Judgment  to  extend  no  farther  than  removal  from  office 

148 


Evolution  from  the  Charters 

and  disqualification  to  hold  office  under  the  state.  But  the  guilty 
may,  nevertheless,  be  subject  to  indictment  and  punishment  ac- 
cording to  the  laws  of  the  land.     (New  York  Constitution  of 

The  Vermont  constitution  of  1777  repeats  the  provision  of 
the  Pennsylvania  constitution  of  1776. 

The  house  of  representatives  may  impeach,  and  the  impeach- 
ment be  tried  by  a  court  composed  of  the  governor  and  senate  ; 
but  no  judgment  to  be  valid  unless  assented  to  by  two-thirds  of 
the  court.  Judgment  to  extend  no  farther  than  removal  from 
office  and  disqualification  to  hold  office  under  the  state.  But 
the  guilty  may,  nevertheless,  be  subject  to  indictment  and  punish- 
ment according  to  the  laws  of  the  land.  (Rejected  Constitution 
of  Massachusetts  of  1778.) 

The  house  of  representatives  may  impeach  by  a  two-thirds 
vote,  and  the  impeachment  be  tried  by  a  court  composed  of  the 
senators  and  such  judges  as  are  not  members  of  the  house  of 
representatives  ;  no  judgment,  however,  to  be  valid  unless  as- 
sented to  by  two-thirds  of  the  members  of  the  court.  (South 
Carolina  Constitution  of  1778.) 

The  house  of  representatives  may  impeach,  and  the  impeach- 
ment be  tried  by  the  senate.  The  senators  to  be  sworn  to  try 
according  to  the  evidence.  Judgment  to  extend  no  farther  than 
removal  from  office  and  disqualification  to  hold  office  under  the 
state.  But  the  guilty  may,  nevertheless,  be  subject  to  indictment 
and  punishment  according  to  the  laws  of  the  land.  (Massachusetts 
Constitution  of  1780.) 

The  above  provision  is  repeated  in  the  New  Hampshire 
constitution  of  1784. 

The  Vermont  constitution  of  1786  repeats  the  provision  of 
the  Pennsylvania  constitution  of  1776. 

Impeachments  to  be  tried  by  the  inferior  tribunals  with  an 
appeal  to  the  supreme  tribunal.     (Randolph's  Plan,  1787.) 

The  house  of  delegates  may  impeach,  and  the  supreme  court 
try  the  impeachment.     (Pinckney's  Plan,  1787.) 

"The  house  of  representatives  shall  have  the  sole  power  of 
impeachment.  .  .  .  The  senate  shall  have  the  sole  power  to  try 

149 


Evolution  of  the  Constitution 

all  impeachments.  When  sitting  for  that  purpose  they  shall  be 
on  oath  or  affirmation.  When  the  president  of  the  United  States 
is  tried,  the  chief-justice  shall  preside,  and  no  person  shall  be 
convicted  without  the  concurrence  of  two-thirds  of  the  members 
present.  Judgment  in  cases  of  impeachment  shall  not  extend 
further  than  to  removal  from  office,  and  disqualification  to  hold  and 
enjoy  any  office  of  honor,  trust,  or  profit,  under  the  United  States  ; 
but  the  party  convicted  shall  nevertheless  be  liable  and  subject  to 
indictment,  trial,  judgment,  and  punishment,  according  to  law." 
(The  Constitution.) 

13.  The  Executive. 

The  first  mention  of  an  executive  in  any  of  the  docu- 
ments is  in  the  Virginia  charter  of  1609,  where  the 
council  resident  in  England  is  to  appoint  governors  and 
other  officers  for  the  colony.  A  governor  or  executive 
head  of  some  sort  would,  of  course,  be  necessary ;  but 
in  colonial  times  it  was  not  infrequently  supposed  that 
the  executive  could  be  composed  of  several  persons. 
Sometimes  an  executive  committee  or  council  was  ap- 
pointed, and  sometimes  the  governor's  council  was  given 
such  control  over  his  actions  that  he  was  a  mere 
cipher. 

This  tendency  reached  its  extreme  in  the  Articles  of 
Confederation  of  1778,  where,  in  the  recess  of  Congress, 
an  executive  committee  ruled  the  country.  But  many- 
headed  executives  of  this  sort  were  not  a  success,  and, 
in  spite  of  their  suspicions  of  one-man  power,  the  people, 
after  long  experience,  discovered  that  for  certain  pur- 
poses the  one-man  power  was  the  only  effective  method, 
and  they  soon  learned  to  place  upon  it  the  limitations 
that  were  necessary  for  its  proper  restraint 

In  the  summary  under  this  section  the  points  to  be 
»5o 


Evolution  from  thie  Charters 

noticed  are  the  gradual  appearance  of  a  deputy-  or 
lieutenant-governor,  leading  up  to  the  Vice-President  of 
the  Constitution  ;  the  gradual  appearance  of  the  name 
President  to  describe  the  executive  ;  the  appointment  of 
the  executive,  usually  by  the  legislature  or  the  Crown, 
until  the  time  of  the  New  York  constitution  of  1777, 
which  gave  the  election  of  the  governor  to  the  people  ; 
and  the  short  terms  for  which  governors  or  presidents 
were  elected.  There  was  also  not  infrequently  a  pro- 
vision to  prevent  their  too  frequent  re-election.  These 
provisions  about  terms  and  re-election  suggest  at  once 
the  four  years'  term  given  to  the  President  under  the 
Constitution,  and  the  custom,  that  has  become  as  fixed 
as  if  it  were  a  part  of  the  Constitution,  of  allowing  no 
man  to  serve  more  than  two  terms. 

The  council  resident  in  England  to  appoint  a  governor  for  Vir- 
ginia.    (Virginia  Charter  of  1609.) 

An  executive  council  to  meet  once  a  week  and  to  deal  with 
casual  matters.     (Virginia  Charter  of  1611-12.) 

A  governor  and  a  deputy-governor  to  be  elected  by  the  free- 
men.    (Massachusetts  Charter  of  1629.) 

A  governor  to  be  chosen  by  the  general  assembly  every  year. 
(Fundamental  Orders  of  Connecticut,  1638.) 

A  governor  and  a  deputy -governor  to  be  chosen  by  the  general 
assembly  every  year.     (Connecticut  Charter  of  1662.) 

The  above  provision  is  repeated  in  the  Rhode  Island  charter 
of  1663. 

The  governor  to  be  appointed  by  the  proprietors.  (Concessions 
of  East  Jersey,  1665.) 

The  eldest  lord  proprietor  to  be  palatine.  (Locke's  Carolina 
Constitution  of  1669.) 

The  executive  to  consist  of  ten  commissioners  chosen  by  the 
assembly.     (Concessions  of  West  Jersey,  1677.) 

»5< 


Evolution  of  the  Constitution 

The  governor  to  be  appointed  by  the  proprietor.  (Pennsyl- 
vania Frame  of  April  2,  1683.) 

The  governor  and  lieutenant-governor  to  be  appointed  by  the 
Crown.     (Massachusetts  Charter  of  1691.) 

A  president-general  appointed  by  the  Crown.     (Franklin' s  Plan 

of  1754.) 

A  president  appointed  by  the  Crown.      (Hutchinson's  Plan, 

1754-) 

A  president-general  appointed  by  the  Crown.  (Galloway's 
Plan,  1774.) 

A  president  and  vice-president  chosen  by  the  assembly  and 
council.     (South  Carolina  Constitution  of  1776.) 

A  governor  to  be  chosen  by  joint  ballot  of  both  houses  every 
year.     (Virginia  Constitution  of  1776.) 

The  governor  to  be  chosen  by  the  council  and  assembly  and 
the  vice-president  by  the  council  every  year.  (New  Jersey  Con- 
stitution of  1776.) 

A  president  to  be  chosen  by  joint  ballot  of  both  houses  for 
three  years.     (Delaware  Constitution  of  1776.) 

The  executive  power  to  consist  of  a  council  of  twelve  and  a 
president  and  vice-president  chosen  out  of  the  council  by  the 
joint  ballot  of  the  assembly  and  council  every  year.  (Pennsyl- 
vania Constitution  of  1776.) 

The  governor  to  be  chosen  by  the  joint  ballot  of  both  houses 
every  year.     (Maryland  Constitution  of  1776.) 

The  governor  to  be  chosen  by  joint  ballot  of  both  houses  every 
year.     (North  Carolina  Constitution  of  1776.) 

The  governor  to  be  chosen  by  the  representatives  every  year. 
(Georgia  Constitution  of  1777.) 

The  governor  to  be  elected  by  the  freeholders  every  three 
years.     (New  York  Constitution  of  1777.) 

The  executive  council,  governor,  and  lieutenant-governor  to  be 
elected  by  the  fi-eemen.     (Vermont  Constitution  of  1777.) 

The  governor  and  lieutenant-governor  to  be  elected  by  the 
people  every  year.  (Rejected  Constitution  of  Massachusetts  of 
1778.) 

The  governor  and  lieutenant-governor  to  be  elected  by  joint 

»52 


Evolution  from  the  Charters 

ballot  of  both  houses  every  two  years.  (South  Carolina  Constitu- 
tion of  1778.) 

An  executive  committee  to  be  appointed  by  the  congress  of  the 
confederation.     (Articles  of  Confederation  of  1778.) 

The  governor  to  be  chosen  by  the  people  every  year.  (Massa- 
chusetts Constitution  of  1780.) 

The  above  provision  from  the  Massachusetts  Constitution  of 
1780  is  repeated  in  the  New  Hampshire  Constitution  of  1784,  ex- 
cept that  the  executive  is  called  president. 

The  executive  council,  the  governor,  and  the  lieutenant-gov- 
ernor to  be  chosen  by  the  freemen  every  year.  (Vermont  Con- 
stitution of  1786.) 

A  national  executive  to  be  chosen  by  the  national  legislature. 
(Randolph's  Plan,  1787.) 

A  president  suggested  as  an  executive.  (Pinckney's  Plan, 
1787.) 

The  president  and  vice-president  to  be  chosen  by  electors 
elected  by  the  people  of  each  State  every  four  years.  (The  Con- 
stitution.) 

14.  Electors  of  the  President. 

The  following  quotations  are  given  to  show  how  the 
method  of  electing  the  President  was  taken  from  the 
method  of  electing  Senators  in  Maryland  : 

'  •  That  the  senate  be  chosen  in  the  following  manner :  All 
persons,  qualified  as  aforesaid  to  vote  for  county  delegates,  shall, 
on  the  first  day  of  September,  1781,  and  on  the  same  day  in 
every  fifth  year  forever  thereafter,  elect,  viva  voce,  by  a  majority 
of  votes,  two  persons  for  their  respective  counties  (qualified  as 
aforesaid  to  be  elected  county  delegates)  to  be  electors  of  the 
senate ;  and  the  sheriff  of  each  county,  or,  in  case  of  sickness, 
his  deputy  (summoning  two  justices  of  the  county,  who  are  re- 
quired to  attend,  for  the  preservation  of  the  peace),  shall  hold 
and  be  judge  of  the  said  election,  and  make  return  thereof,  as 
aforesaid.  And  all  persons,  qualified  as  aforesaid,  to  vote  for 
delegates  for  the  city  of  Annapolis  and  Baltimore  town,  shall,  on 

'53 


Evolution  of  the  Constitution 

the  same  first  Monday  of  September,  1781,  and  on  the  same  day 
in  every  fifth  year  forever  thereafter,  elect,  viva  voce,  by  a  majority 
of  votes,  one  person  for  the  said  city  and  town  respectively,  quali- 
fied as  aforesaid  to  be  elected  a  delegate  for  the  said  city  and  town 
respectively  ;  the  said  election  to  be  held  in  the  same  manner  as 
the  election  of  delegates  for  the  said  city  and  town  ;  the  right  to 
elect  the  said  elector,  with  respect  to  Baltimore  town,  to  continue 
as  long  as  the  right  to  elect  delegates  for  the  said  town. 

"That  the  said  electors  of  the  senate  meet  at  the  city  of  An- 
napolis, or  such  other  place  as  shall  be  appointed  for  convening  the 
legislature,  on  the  third  Monday  in  September,  1781,  and  on  the 
same  day  in  every  fifth  year  forever  thereafter,  and  they,  or  any 
twenty-four  of  them  so  met,  shall  proceed  to  elect,  by  ballot,  either 
out  of  their  own  body  or  the  people  at  large,  fifteen  senators  (nine 
of  whom  to  be  residents  on  the  western  and  six  to  be  residents 
on  the  eastern  shore),  men  of  the  most  wisdom,  experience,  and 
virtue,  above  twenty-five  years  of  age,  residents  of  the  State 
above  three  whole  years  next  preceding  the  election,  and  having 
real  and  personal  property  above  the  value  of  one  thousand 
pounds  current  money. 

' '  That  the  senators  shall  be  balloted  for,  at  one  and  the  same 
time,  and  out  of  the  gentlemen  residents  of  the  western  shore, 
who  shall  be  proposed  as  senators,  the  nine  who  shall,  on  striking 
the  ballots,  appear  to  have  the  greatest  numbers  in  their  favour, 
shall  be  accordingly  declared  and  returned  duly  elected  ;  and  out 
of  the  gentlemen  residents  of  the  eastern  shore,  who  shall  be 
proposed  as  senators,  the  six  who  shall,  on  striking  the  ballots, 
appear  to  have  the  greatest  number  in  their  favour,  shall  be  ac- 
cordingly declared  and  returned  duly  elected  :  and  if  two  or  more 
on  the  same  shore  shall  have  an  equal  number  of  ballots  in  their 
favour,  by  which  the  choice  shall  not  be  determined  on  the  first 
ballot,  then  the  electors  shall  again  ballot,  before  they  separate  ; 
in  which  they  shall  be  confined  to  the  persons  who  on  the  first 
ballot  shall  have  an  equal  number  :  and  they  who  shall  have  the 
greatest  number  in  their  favour  on  the  second  ballot,  shall  be 
accordingly  declared  and  returned  duly  elected  :  and  if  the  whole 
number  should  not  thus  be  made  up,  because  of  an  equal  number, 

154 


Evolution  from  the  Charters 

on  the  second  ballot,  still  being  in  favour  of  two  or  more  persons, 
then  the  election  shall  be  determined  by  lot,  between  those  who 
have  equal  numbers  ;  which  proceedings  of  the  electors  shall  be 
certified  under  their  hands,  and  returned  to  the  chancellor  for  the 
time  being."     (Maryland  Constitution  of  1776,) 

"Each  state  shall  appoint,  in  such  manner  as  the  legislature 
thereof  may  direct,  a  number  of  electors  equal  to  the  whole 
number  of  senators  and  representatives  to  which  the  state  may 
be  entitled  in  the  congress  ;  but  no  senator  or  representative,  or 
person  holding  an  office  of  trust  or  profit  under  the  United  States, 
shall  be  appointed  an  elector. 

"The  electors  shall  meet  in  their  respective  states,  and  vote 
by  ballot  for  two  persons,  of  whom  one  at  least  shall  not  be  an 
inhabitant  of  the  same  state  with  themselves.  And  they  shall 
make  a  Hst  of  all  the  persons  voted  for,  and  of  the  number  of 
votes  for  each,  which  list  they  shall  sign  and  certify,  and  transmit 
sealed  to  the  seat  of  the  government  of  the  United  States,  directed 
to  the  president  of  the  senate.  The  president  of  the  senate  shall, 
in  the  presence  of  the  senate  and  house  of  representatives,  open 
all  the  certificates,  and  the  votes  shall  then  be  counted.  The 
person  having  the  greatest  number  of  votes  shall  be  the  president, 
if  such  number  be  a  majority  of  the  whole  number  of  electors 
appointed  ;  and  if  there  be  more  than  one  who  have  such  a 
majority,  and  have  an  equal  number  of  votes,  then  the  house  of 
representatives  shall  immediately  choose  by  ballot  one  of  them 
for  president ;  and  if  no  person  have  a  majority,  then  from  the 
five  highest  on  the  list  the  said  house  shall  in  like  manner  choose 
the  president.  But  in  choosing  the  president,  the  votes  shall  be 
taken  by  states,  the  representation  fi-om  each  state  having  one 
vote,  A  quorum  for  this  purpose  shall  consist  of  a  member  or 
members  from  two-thirds  of  the  states,  and  a  majority  of  all  the 
states  shall  be  necessary  to  a  choice.  In  every  case,  after  the 
choice  of  the  president,  the  person  having  the  greatest  number 
of  votes  of  the  electors  shall  be  the  vice-president.  But  if  there 
should  remain  two  or  more  who  have  equal  votes,  the  senate  shall 
choose  from  them  by  ballot  the  vice-president." 

[The  above   quotation,  which  was  Clause  3  of   Section    I, 

155 


Evolution  of  the  Constitution 

Article  II.,  of  the  Constitution,  has  been  somewhat  altered  by 
the  Twelfth  Amendment.] 

1 5.  Duty  to  Execute  the  Laws. 

The  National  Constitution  contains  the  phrase  "  He 
[the  President]  shall  take  care  that  the  laws  be  faithfully 
executed," — a  short  statement,  but  a  very  important 
summary  of  a  large  part  of  the  duty  of  the  President, 
and  one  of  the  clauses  which  give  him  authority  to  put 
down  a  rebellion. 

When  we  trace  its  origin  in  our  documents  we  find 
the  earliest  reference  to  such  a  principle  in  the  Massa- 
chusetts charter  of  1629,  which  merely  says  that  the 
laws  must  be  observed  and  put  in  execution,  without 
assigning  the  duty  to  any  one  in  particular.  But  in  the 
Maryland  charter  of  1632  the  proprietor  is  assigned  the 
duty  and  given  the  means  of  performing  it  in  a  very 
summary  manner.  After  that  the  duty  is  usually  given 
to  the  governor,  and  the  language  used  becomes  more 
and  more  like  the  simple,  brief  expression  which  finally 
appears  in  the  Constitution. 

"Willing,  comaunding,  and  requiring,  and  by  theis  Presents 
for  Vs,  our  Heires,  and  Successors,  ordeyning  and  appointing, 
that  all  such  Orders,  Lawes,  Statuts  and  Ordirmces,  Instruccons 
and  Direccons,  as  shalbe  soe  made  by  the  Governor,  or  Deputie 
Governor  of  the  said  Company,  and  such  of  the  Assistants  and 
Freemen  as  aforesaide,  and  published  in  Writing,  vnder  their 
comon  Seale,  shalbe  carefuUie  and  dulie  observed,  kept,  per- 
formed, and  putt  in  Execucon,  according  to  the  true  intent  and 
meaning  of  the  same."     (Massachusetts  Charter  of  1629.) 

"Do  grant  free,  full,  and  absolute  power,  by  virtue  of  these 
presents  to  him  [Lord  Baltimore]  and  his  heirs  for  the  good  and 

156 


Evolution  from  the  Charters 

happy  government  of  the  said  province,  the  same  laws  duly  to 
execute  upon  all  the  people  within  the  said  province  by  imposition 
of  penalties,  imprisonment,  or  any  other  punishment ;  yea,  if  it 
shall  be  needful,  and  that  the  quality  of  the  offence  require  it,  by 
taking  away  member  or  life,  either  by  him,  the  said  now  Lord 
Baltimore  and  his  heirs,  or  by  his  or  their  deputies,  lieutenants, 
judges,  justices,  magistrates,  officers,  and  ministers,  to  be  or- 
dained or  appointed  according  to  the  tenor  and  true  intention  of 
these  presents."     (Maryland  Charter  of  1632.) 

"  I  "R,  TKl.  being  now  chosen  to  be  Goumor  w'^'in  this  Jurisdic- 
tion, for  the  yeare  ensueing,  and  vntil  a  new  be  chosen,  doe 
sweare  by  the  greate  and  dreadfuU  name  of  the  everliueing  God, 
to  p'mote  the  publicke  good  and  peace  of  the  same,  according  to 
the  best  of  my  skill ;  as  also  will  mayntayne  all  lawfuU  priuiledges 
of  this  Coifionwealth ;  as  also  that  all  wholsome  lawes  that  are 
or  shall  be  made  by  lawfuU  authority  here  established,  be  duly 
executed."     (Fundamental  Orders  of  Connecticut,  1638.) 

The  Carolina  charter  of  1663  copies  the  provision  given  above 
from  the  Maryland  charter  of  1632. 

"The  governor,  with  his  council  before  expressed,  is  to  see 
that  all  courts  established  by  the  laws  of  the  general  assembly,  and 
all  ministers  and  officers,  civil  and  military,  do  and  execute  their 
several  duties  and  offices  respectively  according  to  the  laws  in 
force,  and  to  punish  them  for  swerving  from  the  laws  or  acting 
contrary  to  their  trust,  as  the  nature  of  their  offence  shall  require." 
(Concessions  of  East  Jersey,  1665.) 

The  Carolina  charter  of  1665  copies  the  provision  given  above 
from  the  Maryland  charter  of  1632. 

"  And  the  same  laws  duly  to  execute  unto  and  upon  all  people 
within  the  said  country  and  the  limits  thereof."  (Pennsylvania 
Charter  of  1681.) 

• '  That  the  governor  and  provincial  council  shall  take  care  that 
all  laws,  statutes,  and  ordinances,  which  shall  at  any  time  be 
made  within  the  said  province,  be  duly  and  diligently  executed." 
(Pennsylvania  Frame  of  April  2,  1683.) 

The  above  provision  is  repeated  in  the  Pennsylvania  Frame  of 
1683  and  also  in  the  Pennsylvania  Frame  of  1696. 

157 


Evolution  of  the  Constitution 

' '  That  it  be  his  office  and  duty  to  cause  them  to  be  carried 
into  execution."     (Frankhn's  Plan  of  1754.) 

•'  It  shall  be  his  office  and  duty  to  cause  them  to  be  carried  into 
execution."     (Galloway's  Plan,  1774.) 

' '  The  president,  and,  in  his  absence,  the  vice-president,  with 
the  council,  are  also  to  take  care  that  the  laws  be  faithfully  exe- 
cuted."    (Pennsylvania  Constitution  of  1776.) 

"I,  A.  B.,  elected  governor  of  the  state  of  Georgia,  do  sol- 
emnly promise  and  swear  that  I  will  use  my  utmost  endeavors 
that  the  laws  and  ordinances  of  the  state  be  duly  observed." 
(Georgia  Constitution  of  1777.) 

"  That  it  shall  be  the  duty  of  the  governor  to  take  care  that  the 
laws  are  faithfully  executed  to  the  best  of  his  ability."  (New 
York  Constitution  of  1777.) 

The  Vermont  constitution  of  1777  and  the  Vermont  constitu- 
tion of  1 786  repeat  the  provision  given  above  from  the  Pennsyl- 
vania constitution  of  1776. 

"  He  [the  President]  shall  take  care  that  the  laws  of  the  United 
States  be  duly  executed."     (Pinckney's  Plan,  1787.) 

"  He  [the  President]  shall  take  care  that  the  laws  be  faithfully 
executed."     (The  Constitution.) 

16.  The  President  as  Commander-in-Chief. 

The  Constitution  describes  the  President  as  com- 
mander-in-chief, and  gives  him  control  over  the  army 
and  navy  and  over  the  militia  of  the  several  States 
when  called  into  the  actual  service  of  the  United  States. 
The  origin  of  this  power  and  of  the  name  commander- 
in-chief  is  perhaps  as  good  an  illustration  as  could  be 
given  of  the  growth  which  preceded  the  formation  of  the 
Constitution. 

The  first  quotation,  which  is  from  the  Concessions  of 
East  Jersey  of  1665,  shows  the  power  given  without  the 
name.     The  proprietors  of  East  Jersey  provided  that 

158 


Evolution  from  the  Charters 

the  governor  whom  they  appointed  should  control  any 
militia  that  might  be  raised  in  their  wilderness  province. 
Thirty-one  years  afterwards,  when  William  Penn  was 
preparing  his  plan  for  a  union  of  all  the  colonies,  he  also 
thought  that  the  person  who  was  to  be  the  executive  to 
cany  out  the  plan  should  have  control  of  the  militia 
of  the  colonies,  and  he  almost  gave  him  the  name  that 
was  finally  adopted,  for  he  called  him  a  "  chief  com- 
mander." Thirty-six  years  later  the  Georgia  charter  of 
1732  called  him  the  commander-in-chief,  and  from  that 
time  on  this  name  alternates  with  captain-general,  until 
the  Constitution  adopts  it  in  a  clause  which  briefly 
summarizes  the  forms  that  had  been  previously  given. 

"The  said  governor,  who  is  commissionated  by  us  over  the 
several  framed  [train]  bands  and  companies."  (Concessions  of 
East  Jersey,  1665.) 

"  That  in  times  of  war  the  king's  high  commissioner  shall  be 
general  or  chief  commander  of  the  several  quotas  upon  service 
against  the  common  enemy,  as  he  shall  be  advised,  for  the  good 
and  benefit  of  the  whole."     (Penn's  Plan  of  Union,  1696.) 

"And  our  will  and  pleasure  is,  and  we  do  hereby,  for  us,  our 
heirs  and  successors,  declare  and  grant  that  the  governor  and 
commander-in-chief  of  the  province  of  South  Carolina,  of  us,  our 
heirs  and  successors,  for  the  time  being,  shall  at  all  times  here- 
after have  the  chief  command  of  the  militia  of  our  said  province, 
hereby  erected  and  established."     (Georgia  Charter  of  1732.) 

"  That  the  supreme  command  of  all  the  military  force  em- 
ployed by  the  president  and  council  be  in  the  president."  (Hutch- 
inson's Plan,  1754.) 

"That  the  general  assembly  and  the  said  legislative  council 
shall  jointly  choose  by  ballot  frqfti  among  themselves,  or  from  the 
people  at  large,  a  president  and  commander-in-chief  and  a  vice- 
president  of  the  colony."     (South  Carolina  Constitution  of  1776.) 

>S9 


Evolution  of  the  Constitution 

"That  the  governor,  or,  in  his  absence,  the  vice-president  of 
the  council,  shall  act  as  captain-general  and  commander-in-chief 
of  all  the  militia  and  other  military  force  in  this  colony. ' '  (New 
Jersey  Constitution  of  1776.) 

"  The  president,  with  the  advice  and  consent  of  the  privy  coun- 
cil, may  act  as  captain-general  and  commander-in-chief"  [of  the 
militia],     (Delaware  Constitution  of  1776.) 

' '  The  president  shall  be  commander-in-chief  of  the  forces  of 
the  State,  but  shall  not  command  in  person,  except  advised  thereto 
by  the  council,  and  then  only  so  long  as  they  shall  approve 
thereof."     (Pennsylvania  Constitution  of  1776.) 

"The  governor,  for  the  time  being,  shall  be  captain-general 
and  commander-in-chief  of  the  militia. ' '  (North  Carolina  Con- 
stitution of  1776.) 

"The  governor,  for  the  time  being,  shall  be  captain-general 
and  commander-in-chief  over  all  the  militia  and  other  military 
and  naval  forces  belonging  to  this  State.' '  (Georgia  Constitution 
of  1777.) 

• '  That  the  governor  shall,  by  virtue  of  his  office,  be  general 
and  commander-in-chief  of  all  the  militia  and  admiral  of  the 
navy  of  this  State."     (New  York  Constitution  of  1777.) 

The  Vermont  constitution  of  1777  repeats  the  provision  given 
above  from  the  Pennsylvania  constitution  of  1776. 

"The  congress  shall  have  the  sole  power  of  appointing  a 
generalissimo  and  commander-in-chief  of  the  land  forces." 
(Drayton's  Articles  of  Confederation,  1778.) 

'  •  He  [the  governor]  shall  be  general  and  commander-in-chief 
of  the  militia  and  admiral  of  the  navy  of  this  State."  (Rejected 
Constitution  of  Massachusetts  of  1778.) 

"  The  governor  of  this  commonwealth,  for  the  time  being,  shall 
be  the  commander-in-chief  of  the  army  and  navy  and  of  all  the 
military  forces  of  the  State  by  sea  and  land."  (Massachusetts 
Constitution  of  1780.) 

The  above  provision  from  the  Massachusetts  constitution  of 
1780  is  repeated  in  the  New  Haiflpshire  constitution  of  1784. 

The  Vermont  constitution  of  1786  repeats  the  provision  given 
above  from  the  Pennsylvania  constitution  of  1776. 

160 


Evolution  from  the  Charters 

"  He  [the  President]  shall  be  commander-in-chief  of  the  army 
and  navy  of  the  United  States,  and  of  the  miUtia  of  the  several 
States."     (Pinckney's  Plan,  1787.) 

"  The  President  shall  be  commander-in-chief  of  the  army  and 
navy  of  the  United  States,  and  of  the  militia  of  the  several  States 
when  called  into  the  actual  service  of  the  United  States."  (The 
Constitution.) 

17.  Veto  Power. 

The  quotations  in  this  section  show  the  absolute  veto 
power  of  governor  or  king  as  it  existed  in  various  forms 
in  colonial  times  up  to  the  New  York  constitution  of 
1777,  when  the  modified  veto  appeared,  afterwards 
adopted  in  the  Constitution. 

The  first  appearance  of  anything  like  a  veto  power 
was  in  the  Maryland  charter  of  1632,  which  gave  Lord 
Baltimore  the  power  to  make  laws  with  the  assent  of 
the  freemen  or  their  delegates.  The  effect  of  this  in 
practice  was,  of  course,  that  the  assembly  of  the  free- 
men made  the  laws  and  submitted  them  to  Lord  Balti- 
more or  his  deputy  for  approval. 

"  Know  ye  therefore,  moreover,  that  we,  reposing  especial 
trust  and  confidence  in  the  fidelity,  wisdom,  justice,  and  provi- 
dent circumspection  of  the  said  now  Lord  Baltimore,  for  us,  our 
heirs  and  successors,  do  grant  free,  full,  and  absolute  power,  by 
virtue  of  these  presents,  to  him  and  his  heirs,  for  the  good  and 
happy  government  of  the  said  province,  to  ordain,  make,  enact, 
and,  under  his  and  their  seals,  to  publish  any  laws  whatsoever 
appertaining  either  unto  the  public  state  of  the  said  province  or 
unto  the  private  utility  of  particular  persons  according  unto  their 
best  discretions,  of  and  with  the  advice,  assent,  and  approbation 
of  the  freemen  of  the  said  province,  or  the  greater  part  of  them, 
or  of  their  delegates  or  deputies."  (Maryland  Charter  of  1632.) 
IX  161 


Evolution  of  the  Constitution 

The  above  provision  is  repeated  in  the  Carolina  charter  of 
1663. 

"Which  laws,  etc.,  so  made  shall  receive  publication  from  the 
governor  and  council  (but  as  the  laws  of  us  and  our  general  as- 
sembly) and  be  in  force  for  the  space  of  one  year  and  no  more 
unless  contradicted  by  the  lords  proprietors,  within  which  time 
they  are  to  be  presented  to  us,  our  heirs,  etc.,  for  our  ratification, 
and,  being  confirmed  by  us,  they  shall  be  in  continual  force  till 
expired  by  their  own  limitation  or  by  act  of  repeal  in  like  manner 
to  be  passed  as  aforesaid  and  confirmed."  (Concessions  of  East 
Jersey,  1665.) 

The  Carolina  Charter  of  1665  copies  the  provision  given  above 
from  the  Maryland  Charter  of  1632. 

"The  palatine's  court  shall  consist  of  the  palatine  and  seven 
proprietors.  This  court  shall  have  a  negative  upon  all  acts, 
orders,  votes,  and  judgments  of  the  grand  council  and  the  par- 
liament" [except  in  the  appointment  of  landgraves,  caziques, 
and  proprietors] .  ' '  No  act  or  order  of  parliament  shall  be 
of  any  force  unless  it  be  ratified  in  open  parliament  during 
the  same  session  by  the  palatine  or  his  deputy  and  three  more 
of  the  lords  proprietors  or  their  deputies,  and  then  not  to  con- 
tinue longer  in  force  but  until  the  next  biennial  parliament, 
unless  in  the  mean  time  it  be  ratified  under  the  hands  and 
seals  of  the  palatine  himself  and  three  more  of  the  lords 
proprietors  themselves,  and  by  their  order  published  at  the 
next  biennial  parliament."  (Locke's  Carolina  Constitution  of 
1669.) 

' '  And  our  will  and  pleasure  is,  and  we  do  hereby  declare, 
ordain,  and  grant,  that  all  and  every  such  Acts,  Laws,  and  ordi- 
nances, as  shall  from  time  to  time  be  made  in  and  by  such  gen- 
eral Assembly  or  Assemblies,  shall  be  first  approved  and  allowed 
by  the  Pres.  and  Councell  for  the  time  being,  and,  thereupon 
shall  stand  and  be  in  force  until  y*  pleasure  of  us,  our  heirs 
and  successors,  shall  be  known,  whether  y'  same  Laws  and  ordi- 
nances shall  receive  any  change  or  confirmation,  or  be  totally 
disallowed  and  discharged."  (Commission  for  New  Hampshire 
of  1680.) 

162 


Evolution  from  the  Charters 

The  Pennsylvania  Charter  of  i68i  copies  the  provision  given 
above  from  the  Maryland  Charter  of  1632. 

"  Our  further  will  and  pleasure  is  that  a  transcript  or  Duplicate 
of  all  Lawes,  which  shall  bee  soe  as  aforesaid  made  and  published 
within  the  said  Province,  shall  within  five  yeares  after  the  makeing 
thereof,  be  transmitted  and  delivered  to  the  Privy  Councell,  for 
the  time  being,  of  us,  our  heires  and  successors  :  And  if  any  of 
the  said  Lawes,  within  the  space  of  six  moneths  after  that  they 
shall  be  soe  transmitted  and  delivered,  bee  declared  by  us,  Our 
heires  and  Successors,  in  Our  or  their  Privy  Councell,  inconsistent 
with  the  Sovereigntey  or  lawful  Prerogative  of  us,  our  heires  or 
Successors,  or  contrary  to  the  Faith  and  Allegiance  due  by  the 
legall  government  of  this  Realme,  from  the  said  Wiliiam  Penn, 
or  his  heires,  or  of  the  Planters  and  Inhabitants  of  the  said  Prov- 
ince, and  that  thereupon  any  of  the  said  Lawes  shall  bee  adjudged 
and  declared  to  bee  void  by  us,  our  heires  or  Successors,  under 
our  or  their  Privy  Scale,  that  then  and  from  thenceforth,  such 
Lawes,  concerning  which  such  Judgement  and  declaration  shall 
bee  made,  shall  become  voyd :  Otherwise  the  said  Lawes  soe 
transmitted,  shall  remaine,  and  stand  in  full  force,  according  to 
the  true  intent  and  meaneing  thereof."  (Pennsylvania  Charter  of 
1681.) 

"  Provided  alwaies  and  Wee  doe  by  these  presents  for  vs  Our 
Heires  and  Successors  Establish  and  Ordaine  that  in  the  frameing 
and  passing  of  all  such  Orders  Laws  Statutes  and  Ordinances  and 
in  all  Elections  and  Acts  of  Government  whatsoever  to  be  p>assed 
made  or  done  by  the  said  Generall  Court  or  Assembly  or  in  Coun- 
cill  the  Governor  of  our  said  Province  or  Territory  of  the  Massa- 
chusetts Bay  in  New  England  for  the  time  being  shall  have  the 
Negative  voice  and  that  without  his  consent  or  Approbation  signi- 
fied and  declared  in  Writeing  no  such  Orders  Laws  Statutes 
Ordinances  Elections  or  other  Acts  of  Government  whatsoever  soe 
to  be  made  passed  or  done  by  the  said  Generall  Assembly  or  in 
Councill  shall  be  of  any  Force  effect  or  validity  anything  herein 
contained  to  the  contrary  in  anywise  notwithstanding  And  wee 
doe  for  vs  Our  Heires  and  Successors  Establish  and  Ordaine  that 
the  said  Orders  Laws  Statutes  and  Ordinances  be  by  the  first 

163 


Evolution  of  the  Constitution 

opportunity  after  the  makeing  thereof  sent  or  Transmitted  vnto  vs 
Our  Heires  and  Successors  vnder  the  Publique  Seale  to  be  ap- 
pointed by  vs  for  Our  or  their  approbation  or  Disallowance  And 
that  in  case  all  or  any  of  them  shall  at  any  time  within  the  space 
of  three  yeares  next  after  the  same  shall  have  been  presented  to 
vs  our  Heires  and  Successors  in  Our  or  their  Privy  Councill  be 
disallowed  and  reiected  and  soe  signified  by  vs  Our  Heires  and 
Successors  vnder  our  or  their  Signe  Manuall  and  Signett  or  by  or 
in  our  or  their  Privy  Councill  vnto  the  Governor  for  the  time 
being  then  such  and  soe  many  of  them  as  shall  be  soe  disallowed 
and  riected  shall  thenceforth  cease  and  determine  and  become 
vtterly  void  and  of  none  effect  Provided  alwais  that  incase  Wee 
our  Heires  or  Successors  shall  not  within  the  Terme  of  Three 
Yeares  after  the  presenting  of  such  Orders  Lawes  Statutes  or 
Ordinances  as  aforesaid  signifie  our  or  their  Disallowance  of 
the  same  Then  the  said  orders  Lawes  Statutes  or  Ordinances 
shall  be  and  continue  in  full  force  and  effect  according  to  the  true 
Intent  and  meaneing  of  the  same  vntill  the  Expiracon  thereof 
or  that  the  same  shall  be  Repealed  by  the  Generall  Assembly  of 
our  said  province  for  the  time  being."  (Massachusetts  Charter, 
1691.) 

"All  which  proposed  and  prepared  bills,  or  such  of  them  as 
the  governor,  with  the  advice  of  the  council,  shall  in  open  assem- 
bly declare  his  assent  unto  shall  be  the  laws  of  this  province  and 
territories  thereof."     (Pennsylvania  Frame  of  1696.) 

"  In  all  which  cases  the  governor-general  or  lieutenant  is  to 
have  a  negative."     (Daniel  Coxe'sPlan,  1722.) 

' '  And  the  same  [laws]  shall  and  may  present  under  their 
common  seal  to  us,  our  heirs  and  successors,  in  our  or  their  privy 
council  for  our  or  their  approbation  or  disallowance  :  and  the  said 
laws,  statutes  and  ordinances,  being  approved  of  by  us,  our  heirs 
and  successors,  in  our  or  their  privy  council,  shall  from  thence 
forth  be  in  full  force  and  virtue  within  our  said  province  of 
Georgia."     (Georgia  Charter  of  1732.) 

"  That  the  assent  of  the  president-general  be  requisite  to  all 
acts  of  the  grand  council."     (Franklin's  Plan  of  1754.) 

"  That  the  assent  of  the  president  be  made  necessary  to  all 
164 


Evolution  from  the  Charters 

acts  of  the  council,  saving  the  choice  of  the  speaker,"  (Hutch- 
inson's Plan,  1754.) 

' '  The  president-general's  assent  shall  be  requisite  to  all  acts  of 
the  grand  council."     (Galloway's  Plan,  1774.) 

' '  Bills  having  passed  the  general  assembly  and  legislative 
council  may  be  assented  to  or  rejected  by  the  president  and 
commander-in-chief."     (South  Carolina  Constitution  of  1776.) 

"And  whereas  laws  inconsistent  with  the  spirit  of  this  consti- 
tution, or  with  the  public  good,  may  be  hastily  and  unadvisedly 
passed  :  Be  it  ordained,  that  the  governor  for  the  time  being,  the 
chancellor,  and  the  judges  of  the  supreme  court,  or  any  two  of 
them,  together  with  the  governor,  shall  be,  and  hereby  are,  con- 
stituted a  council  to  revise  all  bills  about  to  be  passed  into  laws 
by  the  legfislature  ;  and  for  that  purpose  shall  assemble  themselves 
from  time  to  time,  when  the  legislature  shall  be  convened  ;  for 
which,  nevertheless,  they  shall  not  receive  any  salary  or  consid- 
eration, under  any  pretence  whatever.  And  that  all  bills  which 
have  passed  the  senate  and  assembly  shall,  before  they  become 
laws,  be  presented  to  the  said  council  for  their  revisal  and  con- 
sideration ;  and  if,  upon  such  revision  and  consideration,  it  should 
appear  improper  to  the  said  council,  or  a  majority  of  them,  that 
the  said  bill  should  become  a  law  of  this  state,  that  they  return 
the  same,  together  with  their  objections  thereto  in  writing,  to  the 
senate  or  house  of  assembly  (in  whichsoever  the  same  shall  have 
originated),  who  shall  enter  the  objections  sent  down  by  the  coun- 
cil at  large  in  their  minutes,  and  proceed  to  reconsider  the  said 
bill.  But  if,  after  such  reconsideration,  two-thirds  of  the  said 
senate  or  house  of  assembly  shall,  notwithstanding  the  said  objec- 
tions, agree  to  pass  the  same,  it  shall,  together  with  the  objections, 
be  sent  to  the  other  branch  of  the  legislature,  where  it  shall  also 
be  reconsidered,  and,  if  approved  by  two-thirds  of  the  members 
present,  shall  be  a  law.  And  in  order  to  prevent  any  unnecessary 
delays,  be  it  further  ordained,  that  if  any  bill  shall  not  be  re- 
turned by  the  council  within  ten  days  after  it  shall  have  been 
presented,  the  same  shall  be  a  law,  unless  the  legislature  shall,  by 
their  adjournment,  render  a  return  of  the  said  bill  within  ten 
days  impracticable  ;  in  which  case  the  bill  shall  be  returned  on 

165 


Evolution  of  the  Constitution 

the  first  day  of  the  meeting  of  the  legislature  after  the  expiration 
of  the  said  ten  days."     (New  York  Constitution  of  1777.) 

"  No  bill  or  resolve  of  the  senate  or  house  of  representatives 
shall  become  a  law,  and  have  force  as  such,  until  it  shall  have 
been  laid  before  the  governor  for  his  revisal ;  and  if  he,  upon  such 
revision,  approve  thereof,  he  shall  signify  his  approbation  by 
signing  the  same.  But  if  he  have  any  objection  to  the  passing  of 
such  bill  or  resolve,  he  shall  return  the  same,  together  with  his 
objections  thereto,  in  writing,  to  the  senate  or  house  of  representa- 
tives, in  whichsoever  the  same  shall  have  originated,  who  shall 
enter  the  objections  sent  down  by  the  governor,  at  large,  on  their 
records,  and  proceed  to  reconsider  the  said  bill  or  resolve  ;  but  if, 
after  such  reconsideration,  two-thirds  of  the  said  senate  or  house 
of  representatives  shall,  notwithstanding  the  said  objections,  agree 
to  pass  the  same,  it  shall,  together  with  the  objections,  be  sent  to 
the  other  branch  of  the  legislature,  where  it  shall  also  be  recon- 
sidered, and,  if  approved  by  two-thirds  of  the  members  present, 
shall  have  the  force  of  law  ;  but  in  all  such  cases  the  vote  of  both 
houses  shall  be  determined  by  yeas  and  nays,  and  the  names  of 
the  persons  voting  for  or  against  the  said  bill  or  resolve  shall  be 
entered  upon  the  public  records  of  the  commonwealth.  And  in 
order  to  prevent  unnecessary  delays,  if  any  bill  or  resolve  shall 
not  be  returned  by  the  governor  within  five  days  after  it  shall 
have  been  presented,  the  same  shall  have  the  force  of  law." 
(Massachusetts  Constitution  of  1780.) 

' '  Every  bill  which  shall  have  passed  the  legislature  shall  be 
presented  to  the  President  of  the  United  States  for  his  revision. 
If  he  approves  it  he  shall  sign  it,  but  if  he  does  not  approve  it  he 
shall  return  it,  with  his  objections,  to  the  house  it  originated  in, 
which  house,  if  two-thirds  of  the  members  present,  notwithstand- 
ing the  President's  objections,  agree  to  pass  it,  shall  send  it  to 
the  other  house,  with  the  President's  objections ;  where,  if  two- 
thirds  of  the  members  present  also  agree  to  pass  it,  the  same  shall 
become  a  law  ;  and  all  bills  sent  to  the  President  and  not  returned 
by  him  within  days  shall  be  laws  unless  the  legislature,  by 

their  adjournment,  prevent  their  return,  in  which  case  they  shall 
pot  be  laws."     (Pinckney's  Plan,  1787.) 

166 


Evolution  from  the  Charters 

• '  Every  bill  which  shall  have  passed  the  house  of  representa- 
tives and  the  senate  shall,  before  it  become  a  law,  be  presented 
to  the  President  of  the  United  States.  If  he  approve  he  shall 
sign  it,  but  if  not  he  shall  return  it,  with  his  objections,  to  that 
house  in  which  it  shall  have  originated,  who  shall  enter  the  ob- 
jections at  large  in  their  journal  and  proceed  to  reconsider  it.  If, 
after  such  reconsideration,  two-thirds  of  that  house  shall  agree  to 
pass  the  bill,  it  shall  be  sent,  together  with  the  objections,  to  the 
other  house,  by  which  it  shall  likewise  be  reconsidered,  and,  if 
approved  by  two-thirds  of  that  house,  it  shall  become  a  law.  But 
in  all  such  cases  the  votes  of  both  houses  shall  be  determined  by 
yeas  and  nays,  and  the  names  of  the  persons  voting  for  and 
against  the  bill  shall  be  entered  on  the  journal  of  each  house 
respectively.  If  any  bill  shall  not  be  returned  by  the  President 
within  ten  days  (Sundays  excepted)  after  it  shall  have  been  pre- 
sented to  him,  the  same  shall  be  a  law  in  like  manner  as  if  he  had 
signed  it,  unless  the  congress,  by  their  adjournment,  prevent  its 
return,  in  which  case  it  shall  not  be  a  law.  Every  order,  resolu- 
tion, or  vote,  to  which  the  concurrence  of  the  senate  and  house  of 
representatives  may  be  necessary  (except  on  a  question  of  ad- 
journment) shall  be  presented  to  the  President  of  the  United 
States,  and  before  the  same  shall  take  effect  shall  be  approved  by 
him,  or,  being  disapproved  by  him,  shall  be  repassed  by  two-thirds 
of  the  senate  and  house  of  representatives,  according  to  the  rules 
and  hmitatlons  prescribed  in  the  case  of  a  bill."  (The  Consti- 
tution.) 

1 8.  The  Pardoning  Power. 

Many  experiments  were  made  with  the  pardoning 
power  before  it  was  given  its  present  characteristics  in 
the  National  Constitution,  Beginning  with  the  Virginia 
charter  of  1609,  which  gave  the  power  generally  to  the 
company  and  its  officers,  the  power  shifted  about  for 
over  a  hundred  and  seventy  years  from  the  governor 
to  the  legislature,  and  from  the  legislature  to  the  gov- 
ernor and  his  council,  or  to  a  board  composed  of  the 

167 


Evolution  of  the  Constitution 

governor,  the  lieutenant-governor,  and  the  speaker  of 
the  house  of  representatives,  until  in  the  Constitution 
it  rested  with  the  President  alone,  except  in  cases  of 
impeachment,  which  had  been  an  exception  in  some 
previous  documents. 

In  the  Maryland  charter  of  1632  Lord  Baltimore  was 
given  the  right  to  pardon  before  judgment, — a  right 
which  no  governor  of  any  of  our  States  is  now  believed 
to  possess.  But  it  seems  to  have  been  thought  at  one 
time  in  Massachusetts  that  the  bare  right  to  pardon 
would  carry  with  it  the  right  to  pardon  either  before  or 
after  judgment,  for  in  the  constitution  of  that  State  of 
1780  the  right  to  pardon  before  judgment  is  expressly 
prohibited. 

Of  late  years  some  of  our  States  have  returned  to  the 
old  method  of  a  board  of  pardons  composed  of  the 
governor  and  other  officers. 

Officers  of  the  company  to  punish  and  pardon  according  to 
such  laws  as  should  be  made.  In  defect  of  law,  in  cases  of  neces- 
sity at  their  discretion.     (Virginia  Charter  of  1609.) 

Officers  of  the  company  to  punish  and  pardon  according  to 
such  laws  as  should  be  made.     (Massachusetts  Charter  of  1629.) 

The  pardoning  power  given  to  the  proprietor.  (Maryland 
Charter  of  1632.) 

The  above  provision  is  repeated  in  the  Grant  of  Maine  of  1639. 

The  pardoning  power  given  to  the  legislature.  (Connecticut 
Charter  of  1662.) 

The  above  provision  is  repeated  in  the  Rhode  Island  Charter 
of  1663. 

The  Carolina  Charter  of  1663  copies  the  provision  above 
given  from  the  Maryland  charter  of  1632. 

The  pardoning  power  given  to  the  proprietor.  (Concessions 
of  East  Jersey,  1665.) 

168 


Evolution  from  the  Charters 

The  Carolina  charter  of  1665  copies  the  provision  above 
given  from  the  Maryland  charter  of  1632. 

The  pardoning  power  g^ven  to  the  palatine  and  his  court. 
(Locke's  CaroHna  Constitution  of  1669.) 

The  pardoning  power  given  to  the  proprietor.  (Pennsylvania 
Charter  of  168 1.) 

The  pardoning  power  given  to  the  governor  and  his  council. 
(Virginia  Constitution  of  1776.) 

The  pardoning  power  given  to  the  governor  and  his  council. 
(New  Jersey  Constitution  of  1776.) 

The  pardoning  power  given  to  the  governor.  (Delaware  Con- 
stitution of  1776.) 

The  pardoning  power  given  to  the  governor  and  his  council. 
(Pennsylvania  Constitution  of  1776.) 

The  pardoning  power  given  to  the  governor.  (Maryland  Con- 
stitution of  1776.) 

The  pardoning  power  given  to  the  governor.  (North  Carolina 
Constitution  of  1776.) 

The  pardoning  power  gfiven  to  the  legislature.  (Georgia  Con- 
stitution of  1777.) 

The  pardoning  power  in  treason  and  murder  given  to  the  legis- 
lature and  in  other  crimes  to  the  governor.  (New  York  Constitu- 
tion of  1777.) 

The  Vermont  constitution  of  1777  repeats  the  provision  gfiven 
above  from  the  Pennsylvania  constitution  of  1776. 

The  governor  and  council  may  reprieve  for  not  more  than  six 
months  ;  the  pardoning  power  given  to  the  governor,  lieutenant- 
governor,  and  speaker  of  the  house  of  representatives.  (Rejected 
Constitution  of  Massachusetts  of  1778.) 

The  governor  and  council  may  reprieve  for  not  more  than  six 
months  ;  the  pardoning  power  given  to  the  legislature.  (Rejected 
Constitution  of  New  Hampshire  of  1778.) 

The  pardoning  power,  except  in  cases  of  impeachment,  given 
to  the  governor  and  council,  but  no  pardon  given  before  convic- 
tion shall  avail.     (Massachusetts  Constitution  of  1780.) 

The  above  provision  is  repeated  in  the  New  Hampshire  con- 
stitution of  1 784. 

169 


Evolution  of  the  Constitution 

The  Vermont  constitution  of  1786  repeats  the  provbion  given 
above  from  the  Pennsylvania  constitution  of  1 776. 

The  pardoning  power,  except  in  impeachment,  given  to  the 
President.     (Pinckney's  Plan,  1787.) 

The  pardoning  power,  except  in  impeachment,  given  to  the 
President.     (The  Constitution.) 

19,  President's  Menage. 

"That  he  [the  President]  recommend  them  y*  making  of  such 
Acts,  Laws,  and  Ordinances,  as  may  most  tend  to  y'  establishing 
them  in  obedience  to  our  authority  ;  their  own  p'servation  in  peace 
and  good  Governm',  and  defend  against  their  enemies,  and  that 
they  do  consider  of  the  fittest  ways  for  raising  of  taxes,  and  in 
such  proportion  as  may  be  fit  fory*  support  of  y*  s"*  Governm*." 
(Commission  for  New  Hampshire  of  1680.) 

"  That  it  shall  be  the  duty  of  the  governor  to  inform  the  legis- 
lature, at  every  session,  of  the  condition  of  the  State,  so  far  as 
may  respect  his  department ;  to  recommend  such  matters  to  their 
consideration  as  shall  appear  to  him  to  concern  its  good  govern- 
ment,  welfare,   and   prosperity."      (New  York  Constitution   of 

J777-) 

"  It  shall  be  the  duty  of  the  governor  to  inform  the  legislature, 
at  every  season  of  the  general  court,  of  the  condition  of  the  State, 
and  from  time  to  time  to  recommend  such  matters  to  their  con- 
sideration as  shall  appear  to  him  to  concern  its  good  government, 
welfare,  and  prosperity. "  (Rejected  Constitution  of  Massachusetts 
of  1778.) 

"He  shall  from  time  to  time  give  information  to  the  legis- 
lature of  the  state  of  the  Union,  and  recommend  to  their  con- 
sideration the  measures  he  may  think  necessary."  (Pinckney's 
Plan,  1787.) 

' '  He  [the  President]  shall  from  time  to  time  give  to  the  Con- 
gress information  of  the  state  of  the  Union,  and  recommend  to 
their  consideration  such  measures  as  he  shall  judge  necessary 
and  expedient."     (The  Constitution.) 


170 


Evolution  from  the  Charters 

20,  Appointing  Power, 

The  power  to  fill  the  offices  of  government  is  given 
in  the  National  Constitution,  in  a  rather  curious  way,  to 
the  President  and  Senate,  with  a  discretion  left  to  Con- 
gress to  provide  by  law  for  appointment  to  inferior 
offices,  and  the  summary  shows  that  this  method  of 
dividing  the  power  between  the  executive  and  the  legis- 
lature was  the  result  of  a  long  development  from  the 
earliest  colonial  times. 

In  the  governments  of  Europe  it  was  not  common  for 
the  legislature  to  appoint  to  office,  and  in  England  the 
appointing  power  was  in  the  Crown  ;  but  in  the  early 
colonial  charters  and  constitutions  the  power  was  fre- 
quently given  solely  to  the  legislature.  As  time  went 
on,  the  executive  was  given  a  share  in  it,  and  it  was 
divided  up  among  the  governor,  the  council,  and  the 
legislature  in  varying  proportions  until  the  plan  adopted 
in  the  Constitution  was  reached. 

Appointing  power  given  to  the  council.  (Virginia  Charter  of 
1609.) 

Appointing  power  given  to  the  general  courts,  which  were  com- 
posed of  the  treasurer  and  company.  (Virginia  Charter  of  161 1- 
12.) 

Appointing  power  given  to  the  council,  (Charter  of  New 
England  of  1620.) 

Appointing  power  given  to  the  general  court,  which  was  com- 
posed of  the  governor,  assistants,  and  freemen.  (Massachusetts 
Charter  of  1629.) 

Appointing  power  gfiven  to  the  proprietor.  (Maryland  Charter 
of  1632.) 

Appointing  power  given  to  the  general  assembly.  (Funda- 
mental Orders  of  Connecticut,  1638.) 

171 


Evolution  of  the  Constitution 

Appointing  power  given  to  the  general  assembly.  (Connecticut 
Charter  of  1662.) 

The  above  provision  is  repeated  in  the  Rhode  Island  Charter 
of  1663. 

Appointing  power  given  to  the  proprietor.  (Carolina  Charter 
of  1663.) 

Appointing  power  given  to  the  governor  and  his  council.  (Con- 
cessions of  East  Jersey  of  1665.) 

Appointing  power  given  to  the  proprietor.  (Pennsylvania 
Charter  of  1681.) 

The  provincial  council  to  nominate  and  the  governor  to  ap- 
point.    (Pennsylvania  Frame  of  April  2,  1683.) 

The  provincial  council  and  assembly  to  nominate  and  the 
governor  to  appoint.     (Pennsylvania  Frame  of  1683.) 

Appointing  power  given  to  the  governor,  with  the  consent  of 
the  council,  as  to  certain  officers,  such  as  judges,  sheriffs,  etc.,  and 
the  other  officers  to  be  appointed  by  the  assembly.  (Massa- 
chusetts Charter  of  1691.) 

The  freemen  and  justices  to  nominate  and  the  governor  to 
appoint  sheriffs,  coroners,  and  clerks  of  the  peace.  (Pennsyl- 
vania Charter  of  Privileges  of  1701.) 

Appointing  power  given  to  the  common  council.  (Georgia 
Charter  of  1732.) 

Appointing  power  given  to  the  president-general  and  grand 
council.     (Franklin's  Plan  of  1754.) 

Appointing  power  given  to  the  president  and  council.  (Hutch- 
inson's  Plan  of  1754.) 

Appointing  power  given  to  the  Congress.  (Franklin's  Articles 
of  Confederation  of  1775.) 

Appointing  power  given  to  the  two  houses  of  the  legislature. 
(New  Hampshire  Constitution  of  1776.) 

Appointing  power  given  to  the  legislature,  except  in  a  few  in- 
stances, where  the  president  and  council  could  appoint.  (South 
Carolina  Constitution  of  1776.) 

Appointing  power  divided  between  the  two  houses  of  as- 
sembly and  the  governor  and  council.  (Virginia  Constitution 
of  1776.) 

172 


Evolution  from  the  Charters 

Appointing  power  given  to  the  council  and  assembly.  (New 
Jersey  Constitution  of  1776.) 

Appointing  power  divided  among  the  president,  council,  and 
assembly.     (Delaware  Constitution  of  1776.) 

Appointing  power  divided  among  the  president,  council,  and 
the  assembly.     (Pennsylvania  Constitution  of  1776.) 

Appointing  power  given  to  the  governor  and  council,  except  in 
a  few  officers.     (Maryland  Constitution  of  1776.) 

Appointing  power  given  to  the  legislature.  (North  Carolina 
Constitution  of  1776.) 

The  governor,  with  the  consent  of  a  council  of  the  senate,  to 
appoint.     (New  York  Constitution  of  1777.) 

Appointing  power  divided  among  the  governor,  council,  and 
the  assembly.     (Vermont  Constitution  of  1777.) 

Civil  officers  annually  chosen  to  be  appointed  by  the  legisla- 
ture ;  others  by  the  governor  and  senate.  (Rejected  Constitu- 
tion of  Massachusetts  of  1778.) 

The  appointing  power  divided  between  the  governor  and  the 
legislature.     (South  Carolina  Constitution  of  1778.) 

Appointing  power  given  to  the  general  court.  (Rejected  Con- 
stitution of  New  Hampshire  of  1778.) 

Appointing  power  given  to  Congress.  (Articles  of  Confedera- 
tion, 1778.) 

Appointing  power  given  to  Congress.  (Drayton's  Articles  of 
Confederation,  1778.) 

Appointing  power  divided  among  the  governor,  council,  and 
the  legislature.     (Massachusetts  Constitution  of  1780.) 

Appointing  power  given  to  the  president  and  council.  (New 
Hampshire  Constitution  of  1784.) 

Appointing  power  divided  between  the  President  and  the  Sen- 
ate.    (Pinckney's  Plan,  1787.) 

Appointing  power  given  to  the  President  and  Senate,  with  dis- 
cretion to  Congress  to  vest  the  appointment  of  inferior  officers  in 
the  President  alone,  in  the  courts  of  law,  or  in  the  heads  of  depart- 
ments.    (The  Constitution.) 


»73 


Evolution  of  the  Constitution 

21.  The  Judiciary. 

The  summary  in  this  section  is  not  given  because  it 
shows  a  line  of  development  leading  to  a  clause  in  the 
Constitution,  but  merely  to  show  the  gradual  growth  of 
a  judiciary  department  in  the  colonial  governments. 
The  growth  of  the  legislative  and  executive  departments 
in  colonial  times  having  been  shown,  it  seems  necessary 
to  show  the  growth  of  the  judiciary  in  order  to  complete 
the  three  great  departments,  even  if  the  line  of  the 
judiciary's  development  is  not  carried  down  to  the  Con- 
stitution. 

The  reason  for  not  carrying  the  line  down  to  the  Con- 
stitution is  that  the  judiciary  department  in  the  Consti- 
tution seems  to  have  a  separate  line  of  development 
connected  with  the  development  of  federalism,  and  it 
will  be  treated  under  that  head.  When  federalism,  or 
the  idea  of  having  a  national  government  controlling 
the  people  of  all  the  States,  was  first  developing,  it  was 
not  considered  necessary  to  have  in  it  any  judiciary  de- 
partment at  all.  The  judiciary  gained  an  entrance  into 
federalism  very  slowly,  and  at  first  had  jurisdiction  only 
in  cases  of  captures  in  war  and  piracies  and  felonies  on 
the  high  seas,  and  this  Wcis,  of  course,  not  necessarily 
connected  with  the  gradual  rise  of  a  judiciary  depart- 
ment in  the  colonial  or  State  governments. 

The  summary  in  this  section  has,  accordingly,  been 
carried  only  far  enough  to  show  the  growth  and  firm 
establishment  of  a  judiciary  department  as  a  part  of 
colonial  government,  and  it  stops  at  the  Georgia  charter 
of  1732.  The  constitutions  of  1776  did  not  usually 
provide  for  a  judiciary  department,  because  t^iose  which 

«74 


Evolution  from  the  Charters 

they  had  had  through  the  colonial  period  were  already 
in  existence  and  were  satisfactory.  Nothing  was  to  be 
gained  for  the  cause  of  the  Revolution  by  creating  new 
ones,  and  these  constitutions  of  1776  were  intended  to 
conform  existing  institutions  to  the  new  conditions  of 
independence  rather  than  to  create  out-and-out  new 
forms  of  government  It  will  be  observed  that  in  the 
earliest  documents  only  criminal  jurisdiction  is  given. 

Council  in  Virginia  given  authority  to  bind  over*  and  punish 
offenders  or  send  them  to  England  for  trial.  (Virginia  Charter, 
1611-12.) 

Council  given  authority  to  correct  and  punish.  (Charter  of 
New  England  of  1620.) 

Power  given  to  the  freemen  to  pass  laws  inflicting  fines  and 
imprisonment.     (Massachusetts  Charter  of  1629.) 

Power  given  to  the  proprietor  to  establish  both  civil  and  crimi- 
nal courts.     (Maryland  Charter  of  1632.) 

Judicial  power  given  to  the  magistrates,  who  were,  in  effect,  the 
governor' s  council.    (Fundamental  Orders  of  Connecticut  of  1 638.) 

The  provision  from  the  Maryland  charter  of  1632  is  sub- 
stantially repeated  in  the  grant  of  Maine  of  1639. 

The  general  assembly  given  power  to  establish  courts,  both 
civil  and  criminal.     (Connecticut  Charter  of  1662.) 

The  above  provision  is  substantially  repeated  in  the  Rhode 
Island  charter  of  1663. 

The  provision  from  the  Maryland  charter  of  1632  is  repeated 
in  the  Carolina  charter  of  1663. 

The  general  assembly  given  power  to  establish  courts,  and  the 
governor  and  his  council  given  power  to  establish  criminal  courts. 
(Concessions  of  East  Jersey,  1665.) 

The  provision  from  the  Maryland  charter  of  1632  is  repeated 
in  the  Carolina  charter  of  1665. 

An  elaborate  system  of  courts  established  by  Locke's  Carolina 
constitution.     (Locke's  Carolina  Constitution  of  1669.) 

«75 


Evolution  of  the  Constitution 

The  legislature  given  power  to  establish  courts.  (Concessions 
of  West  Jersey,  1677.) 

The  president  and  council  made  a  court  of  both  civil  and 
criminal  cases,  with  right  of  appeal  to  England.  (Commission 
for  New  Hampshire  of  1680.) 

The  proprietor  may  establish  courts  of  all  kinds,  but  appeals 
maybe  taken  to  England.     (Pennsylvania  Charter  of  1681.) 

The  power  of  establishing  courts  given  to  the  governor  and 
council.     (Pennsylvania  Frame  of  April  2,  1683.) 

The  general  assembly  given  power  to  establish  courts,  and  the 
governor  and  council  to  be  a  court  of  probate  and  administration. 
(Massachusetts  Charter  of  169 1.) 

The  corporation  given  power  to  establish  courts.  (Georgia 
Charter  of  1732.) 

22.  Method  of  Amending. 

At  the  time  of  the  first  settlement  of  America  every 
country's  form  of  government  was  supposed  by  its 
creators  and  upholders  to  last  forever.  As  a  matter  of 
fact,  however,  it  was  well  known  that  governments 
were  changed  by  violence  and  revolution  or  by  a  slow, 
almost  imperceptible  process  of  change  of  custom.  The 
governments  of  the  colonies  were  often  changed  by  new 
charters  signed  by  the  king,  and  it  was  understood  that 
the  power  that  created  these  governments  could  at  any 
time  alter  or  abolish  them. 

But  still  the  fiction  was  kept  up  of  having  each  charter 
declare  that  its  particular  form  of  government  for  the 
colony  should  be  perpetual,  and  it  was  not  until  William 
Penn  and  his  colonists  were  making  their  frame  of  1683 
that  the  idea  seems  to  have  occurred  of  providing,  in  the 
instrument  of  government  itself,  a  regular  and  orderly 
method  of  changing  it  as  time  should  show  the  necessity 

176 


Evolution  from  the  Charters 

for  change.  It  was  a  natural  thought,  and  there  is  no 
evidence  that  either  Penn  or  his  people  believed  that 
they  were  suggesting  anything  wonderful.  But  their 
method,  as  the  summary  shows,  was  repeated  and  re- 
peated until,  after  running  through  many  of.  the  consti- 
tutions of  I  Tjd,  the  Articles  of  Confederation,  and  other 
American  documents,  it  found  its  place  in  the  National 
Constitution. 

It  is  generally  believed  to  be  a  very  important  part  of 
the  Constitution,  giving  the  elasticity  which  secures  per- 
manence and  prevents  revolution.  It  has  already  been 
used  to  make  most  far-reaching  changes,  and  will  prob- 
ably be  used  for  the  same  purpose  again.  As  it  stands 
in  the  Constitution,  it  is  generally  regarded  as  peculiarly 
American  :  so  that  it  is  interesting  to  trace  its  American 
growth  for  over  a  hundred  years. 

There  is  a  curious  resemblance  between  the  clause  in 
the  Constitution  and  the  similar  clause  in  the  Pennsyl- 
vania Charter  of  Privileges  of  1701.  The  Pennsylvania 
document  provides  that  it  may  be  amended  by  the  con- 
sent of  the  governor  and  six  parts  of  seven  of  the  assem- 
bly, but  that  the  article  relating  to  liberty  of  conscience 
shall  never  be  altered.  The  National  Constitution  pro- 
vides for  amendment  by  consent  of  three-fourths  of  the 
States,  but,  like  the  Pennsylvania  Charter  of  Privileges, 
adds  the  exceptions  that  no  State  without  its  consent 
shall  be  deprived  of  its  equal  suffrage  in  the  Senate,  and 
that  prior  to  1808  no  amendment  shall  affect  the  right 
to  import  slaves  or  affect  direct  taxation. 

"That  no  act,  law,  or  ordinance  whatsoever,  shall  at  anytime 
hereafter,  be  made  or  done  by  the  Governor  of  this  province,  his 
M  177 


Evolution  of  the  Constitution 

heirs  or  assigns,  or  by  the  freemen  in  the  provincial  Council,  or 
the  General  Assembly,  to  alter,  change,  or  diminish  the  form,  or 
effect,  of  this  charter,  or  any  part,  or  clause  thereof,  or  contrary 
to  the  true  intent  and  meaning  thereof,  without  the  consent  of  the 
Governor,  his  heirs,  or  assigns,  and  six  parts  of  seven  of  the  said 
freemen  in  provincial  Council  and  General  Assembly.' '  (Penn- 
sylvania Frame  of  April  2,  1683.) 

The  above  provision  is  repeated  in  the  Pennsylvania  Frame  of 
1683  and  in  the  Pennsylvania  Frame  of  1696. 

"AND  no  Act,  Law  or  Ordinance  whatsoever,  shall  at  any 
Time  hereafter,  be  made  or  done,  to  alter,  change  or  diminish  the 
Form  or  Effect  of  this  Charter,  or  of  any  Part  or  Clause  therein, 
contrary  to  the  true  Intent  and  Meaning  thereof,  without  the  Con- 
sent of  the  Governor  for  the  Time  being,  and  Six  Parts  of  Seven 
of  the  Assembly  met. 

"  BUT  because  the  Happiness  of  Mankind  depends  so  much 
upon  the  Enjoying  of  Liberty  of  their  Consciences  as  aforesaid,  I 
do  hereby  solemnly  declare,  promise  and  grant,  for  me,  my  Heirs 
and  Assigns,  That  the  First  Article  of  this  Charter  relating  to 
Liberty  of  Conscience,  and  every  Part  and  Clause  therein,  ac- 
cording to  the  true  Intent  and  Meaning  thereof,  shall  be  kept  and 
remain,  without  any  Alteration,  inviolably  for  ever."  "(Pennsyl- 
vania Charter  of  Privileges  of  170 1.) 

"  As  all  new  institutions  may  have  imperfections  which  only 
time  and  experience  can  discover,  it  is  agreed  that  the  general 
congress,  from  time  to  time,  shall  propose  such  amendments  of 
this  constitution  as  may  be  found  necessary,  which,  being  ap- 
proved by  a  majority  of  the  colony  assemblies,  shall  be  equally 
binding  with  the  rest  of  the  articles  of  this  confederation. ' '  (Frank- 
lin's Articles  of  Confederation,  1775.) 

"  No  article  of  the  declaration  of  rights  and  fundamental  rules 
of  this  State,  agreed  to  by  this  convention,  nor  the  first,  second, 
fifth  (except  that  part  thereof  that  relates  to  the  right  of  suffrage), 
twenty-sixth,  and  twenty-ninth  articles  of  this  constitution  ought 
ever  to  be  violated  on  any  pretence  whatever. 

"  No  other  part  of  this  constitution  shall  be  altered,  changed, 
or  diminished  without  the  consent  of  five  parts  in  seven  of  the 

178 


Evolution  from  the  Charters 

assembly  and  seven  members  of  the  legislative  council."  (Dela- 
ware Constitution  of  1776.) 

"  The  said  council  of  censors  shall  also  have  power  to  call  a 
convention,  to  meet  within  two  years  after  their  sitting,  if  there 
appear  to  them  an  absolute  necessity  of  amending  any  article  of 
the  constitution  which  may  be  defective,  explaining  such  as  may 
be  thought  not  clearly  expressed,  and  of  adding  such  as  are  neces- 
sary for  the  preservation  of  the  rights  and  happiness  of  the  people  : 
But  the  articles  to  be  amended,  and  the  amendments  proposed, 
and  such  articles  as  are  proposed  to  be  added  or  abolished,  shall 
be  promulgated  at  least  six  months  before  the  day  appointed  for 
the  election  of  such  convention,  for  the  previous  consideration  of 
the  people,  that  they  may  have  an  opportunity  of  instructing  their 
delegates  on  the  subject."     (Pennsylvania  Constitution  of  1776.) 

' '  That  this  Form  of  Government,  and  the  Declaration  of  Rights, 
and  no  part  thereof,  shall  be  altered,  changed,  or  abolished, 
unless  a  bill  so  to  alter,  change  or  abolish  the  same  shall  pass  the 
General  Assembly,  and  be  published  at  least  three  months  before 
a  new  election,  and  shall  be  confirmed  by  the  General  Assembly, 
after  a  new  election  of  Delegates,  in  the  first  session  after  such 
new  election  ;  provided  that  nothing  in  this  form  of  government, 
which  relates  to  the  eastern  shore  particularly,  shall  at  any  time 
hereafter  be  altered,  unless  for  the  alteration  and  confirmation 
thereof  at  least  two-thirds  of  all  the  members  of  each  branch  of 
the  General  Assembly  shall  concur."  (Maryland  Constitution  of 
1776.) 

' '  No  alteration  shall  be  made  in  this  constitution  without  peti- 
tions from  a  majority  of  the  counties,  and  the  petitions  from  each 
county  to  be  signed  by  a  majority  of  voters  in  each  county  within 
this  State  ;  at  which  time  the  assembly  shall  order  a  convention  to 
be  called  for  that  purpose,  specifying  the  alterations  to  be  made, 
according  to  the  petitions  preferred  to  the  assembly  by  the  ma- 
jority of  the  counties  as  aforesaid."     (Georgia  Constitution  of 

The  Vermont  constitution  of  1777  repeats  the  provision  gfiven 
above  from  the  Pennsylvania  constitution  of  1776. 

"That  no  part  of  this  constitution  shall  be  altered  without 
179 


Evolution  of  the  Constitution 

notice  being  previously  given  of  ninety  days,  nor  shall  any  part 
of  the  same  be  changed  without  the  consent  of  a  majority  of  the 
membdl-s  of  the  senate  and  house  of  representatives."  (South 
Carolina  Constitution  of  1778.) 

"The  general  court  shall  have  no  power  to  alter  any  part  of 
this  constitution,  ^and,  in  case  they  should  concur  in  any  proposed 
alteration,  amendment,  or  addition,  the  same  being  agreed  to  by 
a  majority  of  the  people,  shall  become  valid."  (Rejected  Con- 
stitution of  Massachusetts  of  1778.) 

' '  Nor  shall  any  alteration  at  any  time  hereafter  be  made  in  any 
of  them  unless  such  alteration  be  agreed  to  in  a  congress  of  the 
United  States  and  be  afterwards  confirmed  by  the  legislatures  of 
every  State."     (Articles  of  Confederation,  1778.) 

"The  articles  of  this  confederation  shall  be  strictly  binding 
upon,  and  inviolably  observed  by,  the  parties  interested  therein  ; 
nor  shall  any  alteration  be  made  in  them,  or  any  of  them,  unless 
such  alteration  shall  be  agreed  to  in  the  congress  and  allowed  by 
the  legislature  of  every  State  in  the  confederacy."  (Drayton's 
Articles  of  Confederation,  1778.) 

"In  order  the  more  effectually  to  adhere  to  the  principles  of 
the  constitution  and  to  correct  those  violations  which  by  any 
means  may  be  made  therein,  as  well  as  to  form  such  alterations 
as  from  experience  shall  be  found  necessary,  the  general  court 
which  shall  be  in  the  year  of  our  Lord  one  thousand  seven  hun- 
dred and  ninety-five  shall  issue  precepts  to  the  selectmen  of  the 
several  towns,  and  to  the  assessors  of  the  unincorporated  planta- 
tions, directing  them  to  convene  the  qualified  voters  of  their  re- 
spective towns  and  plantations  for  the  purpose  of  collecting  their 
sentiments  on  the  necessity  or  expediency  of  revising  the  consti- 
tution in  order  to  amendments. 

• '  And  if  it  shall  appear,  by  the  returns  made,  that  two-thirds 
of  the  qualified  voters  throughout  the  State,  who  shall  assemble 
and  vote  in  consequence  of  the  said  precepts,  are  in  favor  of  such 
revision  or  amendment,  the  general  court  shall  issue  precepts,  or 
direct  them  to  be  issued  from  the  secretary's  office,  to  the  several 
towns  to  elect  delegates  to  meet  in  convention  for  the  purpose 
aforesaid. 

180 


Evolution  from  the  Charters 

"And  said  delegates  to  be  chosen  in  the  same  manner  and 
proportion  as  their  representatives  in  the  second  branch  of  the 
legislature  are  by  this  constitution  to  be  chosen."  (MassaAusetts 
Constitution  of  1780.) 

"To  preserve  an  effectual  adherence  to  the  principles  of  the 
constitution  and  to  correct  any  violations  thereof,  as  well  as  to 
make  such  alterations  therein  as  from  experience  may  be  found 
necessary,  the  general  court  shall,  at  the  expiration  of  seven  years 
from  the  time  this  constitution  shall  take  effect,  issue  precepts,  or 
direct  them  to  be  issued  from  the  secretary's  office,  to  the  several 
towns  and  incorporated  places,  to  elect  delegates  to  meet  in  con- 
vention for  the  purposes  aforesaid  :  the  said  delegates  to  be  chosen 
in  the  same  manner  and  proportioned  as  the  representatives  to 
the  general  assembly  ;  provided  that  no  alteration  shall  be  made 
in  this  constitution  before  the  same  shall  be  laid  before  the  towns 
and  unincorporated  places  and  approved  by  two-thirds  of  the 
qualified  voters  present  and  voting  upon  the  question."  (New 
Hampshire  Constitution  of  1784.) 

"That  provision  ought  to  be  made  for  the  amendment  of  the 
articles  of  union  whenever  it  shall  seem  necessary,  and  that  the 
assent  of  the  national  legislature  ought  not  to  be  required  thereto." 
(Randolph's  Plan  of  1787.) 

"If  two-thirds  of  the  legislatures  of  the  States  apply  for  the 
same,  the  legislature  of  the  United  States  shall  call  a  convention 
forthe  purpose  of  amending  the  Constitution  ;  or,  should  Congress, 
with  the  consent  of  two-thirds  of  each  house,  propose  to  the  States 
amendments  to  the  same,  the  agreement  of  two-thirds  of  the 
legislatures  of  the  States  shall  be  sufficient  to  make  the  said 
amendments  parts  of  the  Constitution. ' '    (Pinckney'  s  Plan,  1 787.) 

"  The  congress,  whenever  two-thirds  of  both  houses  shall  deem 
it  necessary,  shall  propose  amendments  to  this  constitution,  or,  on 
the  application  of  the  legislatures  of  two-thirds  of  the  several 
states,  shall  call  a  convention  for  proposing  amendments,  which 
in  either  case  shall  be  valid  to  all  intents  and  purposes  as  part  of 
this  constitution  when  ratified  by  the  legislatures  of  three-fourths 
of  the  several  states,  or  by  conventions  in  three-fourths  thereof,  as 
the  one  or  the  other  mode  of  ratification  may  be  proposed  by  the 

181 


Evolution  of  the  Constitution 

congress  ;  provided  that  no  amendment  which  may  be  made 
prior  to  the  year  one  thousand  eight  hundred  and  eight  shall  in 
any  manner  affect  the  first  and  fourth  clauses  in  the  ninth  section 
of  the  first  article,  and  that  no  state,  without  its  consent,  shall  be 
deprived  of  its  equal  suffrage  in  the  senate."     (The  Constitution.) 

23.  Prevention  of  Unconstitutional  Laws. 

How  to  prevent  violations  of  a  written  constitution 
must  have  been  among  the  first  questions  that  occurred 
to  the  early  draughtsmen  of  those  instruments.  In  the 
case  of  the  colonial  charters  violations  could  be  punished 
by  forfeiture  of  the  charter,  and  in  many  of  the  colonies  the 
laws  had  to  be  submitted  to  the  king  for  his  approval. 
But  when  written  constitutions  were  made  by  the  peo- 
ple other  safeguards  were  necessary,  and  the  history  of 
the  experiments  and  struggles  to  invent  something  that 
would  be  self-acting  is  instructive. 

The  first  written  constitution  made  by  the  people  of 
this  country  was  the  Fundamental  Orders  of  Connec- 
ticut of  1638,  but  no  attempt  was  made  in  it  to  provide 
a  remedy  for  infringement.  The  subject  may  have  been 
discussed, — it  is  difficult  to  suppose  that  it  was  not  dis- 
cussed,— but,  as  the  problem  was  not  even  partially  solved 
until  one  hundred  and  fifty  years  afterwards,  the  silence 
of  our  first  constitution-makers  can  be  readily  excused. 

Five  years  afterwards,  in  1643,  when  the  New  Eng- 
land Union  was  formed,  its  framers  not  only  considered 
the  question,  but  attempted  a  slight  and  cautious  solution 
of  it  If  any  one  of  the  confederated  colonies  should 
break  the  articles  of  union,  "such  breach  of  agreement, 
or  injury,"  they  said,  "shall  be  duly  considered  and 
ordered  by  the  commissioners." 

182 


Evolution  from  the  Charters 

In  other  words,  they  gave  the  commissioners  power  to 
devise  a  remedy  or  punishment  when  a  case  of  infringe- 
ment should  arise,  which  was  hardly  a  solution  *of  the 
question,  but  rather  a  shifting  of  the  solution  to  the 
shoulders  of  the  commissioners.  It  was  a  beginning, 
nevertheless,  for  it  at  least  gave  the  commissioners  power 
to  decide  when  an  infringement  had  occurred,  and  the 
rest  depended  on  their  own  skill  and  sagacity.  It  is, 
indeed,  very  interesting  to  see  this  first  extremely  care- 
ful step  of  our  people  in  the  solution  of  one  of  their 
most  difficult  problems,  and  I  do  not  suppose  that  the 
most  fanatical  advocate  of  foreign  sources  would  under- 
take to  say  that  they  were  consciously  imitating  any- 
thing in  the  government  of  either  England  or  Holland. 

The  proprietors  of  East  Jersey  were  the  next  people 
who  were  bold  enough  to  face  the  difficulty,  by  providing 
in  their  Concessions  of  1665  that  the  laws  of  the  assem- 
bly should  not  be  contrary  to  the  Concessions,  and 
"  especially  that  they  be  not  repugnant  to  the  article  for 
liberty  of  conscience."  This  seems  very  inadequate,  but 
it  Wcis  a  move  in  the  right  direction,  because  it  laid  down 
the  fundamental  principle  that  the  laws  must  conform  to 
the  constitution. 

Four  years  later,  Locke,  in  his  Carolina  constitution 
of  1669,  went  farther,  and  provided  that  a  law,  when 
suspected  of  unconstitutionality  on  its  passage,  could  be 
protested  and  must  then  be  reconsidered  ;  and,  as  an 
additional  safeguard,  he  arranged  to  have  all  laws  cease 
operation  at  the  end  of  a  hundred  years  from  their 
passage.  But  he  was  outdone  by  the  proprietors  of 
West  Jersey,  who  in  their  Concessions  of  1677  declared 

»83 


Evolution  of  the  Constitution 

that  any  member  of  the  legislature  who  should  move  or 
incite  any  to  move  an  infringement  of  the  constitution 
should  be  proceeded  against  as  a  traitor. 

Neither  Locke  nor  the  proprietors  of  West  Jersey 
succeeded  in  contriving  anything  that  was  of  much 
avail,  and  the  summary  of  the  subsequent  documents 
shows  for  the  most  part  mere  variations  of  previous 
attempts.  The  violent  method  of  the  proprietors  of 
West  Jersey  was,  however,  moderate  compared  to  Dray- 
ton's suggestions  in  his  articles  of  confederation.  If 
Congress  violated  the  Constitution  he  would  allow  the 
States  to  secede,  and  if  a  State  violated  the  Constitution 
it  might  be  fined  or  placed  under  ban,  and,  if  still  con- 
tumacious, punished  by  "the  utmost  vigor  of  arms," 
— a  method  which  certainly  had  the  merit  of  thorough- 
ness. 

Among  all  these  attempts  there  was  only  one  which 
pointed  towards  the  final  goal,  and  this  was  in  the  Penn- 
sylvania Frame  of  1683,  where  William  Penn  announced 
that  if  anything  was  procured  contrary  to  the  constitution 
it  should  be  held  of  no  force  or  effect.  In  other  words, 
an  unconstitutional  law  was  to  be  void  ;  and  if  he  had 
taken  the  next  step  and  said  that  the  judges  should  have 
power  to  declare  it  void  when  a  case  involving  the  law 
came  before  them,  he  would  have  solved  the  problem  as 
we  have  solved  it  under  the  National  Constitution. 

The  framers  of  the  Constitution  took  that  step,  but, 
although  it  was  only  one  step,  a  hundred  years'  ex- 
perience was  required  after  Penn's  Frame  of  1683  be- 
fore it  could  be  taken.  The  way  in  which  the  power 
to  declare  laws  unconstitutional  and  void  was  gradually 

184 


Evolution  from  the  Charters 

given  to  the  judiciary  in  the  national  government  as 
well  as  in  the  governments  of  the  States  has  been  very 
fully  discussed,  of  recent  years,  in  Mr.  Brinton  Coxe's 
"Judicial  Power  and  Unconstitutional  Legislation"  and 
in  Professor  Thayer's  "  Origin  and  Scope  of  the  Ameri- 
can Doctrine  of  Constitutional  Law." 

What  appears  to  be  the  first  instance  of  such  power 
in  the  judiciary  is  found  in  Virginia  in  the  case  of  Josiah 
Philips,  in  the  year  1778,  but  the  case  is  so  obscurely 
reported  that  we  can  only  infer  that  the  court  believed 
themselves  possessed  of  the  power.  In  the  next  case, 
however, — Commonwealth  vs.  Caton,  in  1782,  also  a 
Virginia  case, — the  court  openly  announce  that  they 
have  "power  to  declare  any  resolution  or  act  of  the 
legislature,  or  either  branch  of  it,  to  be  unconstitutional 
and  void."  From  this  point  the  doctrine  grew,  and  the 
cases,  as  originally  collected  by  Mr.  William  M.  Meigs, 
are  very  fully  treated  in  Part  II.,  Chapter  XXIII.,  of  Mr. 
Coxe's  "Judicial  Power  and  Unconstitutional  Legisla- 
tion." 

The  doctrine  was  denied  in  some  States,  and  it  was 
not  firmly  established  until  long  after  the  Constitution 
had  gone  into  operation.  But  in  the  year  1787,  when 
the  Constitution  was  framed,  it  was  sufficiently  well 
known  to  be  accepted  as  a  suggestion,  and  Gerry,  one 
of  the  members  of  the  convention,  said  that  "  in  some 
of  the  States  the  judges  had  actually  set  aside  laws  as 
being  against  the  Constitution." 

The  framers  of  the  Constitution,  of  course,  relied 
largely  for  its  preservation  on  the  good  sense  of  the 
people,  short  terms  of  office,  the  mutual  checking  of  the 

185 


Evolution  of  the  Constitution 

two  houses  of  Congress,  and  the  President's  veto.  But 
they  inserted  a  clause  declaring  that  the  judicial  power 
should  extend  to  all  cases  arising  under  the  Constitu- 
tion, laws,  and  treaties,  and  another  clause  declaring 
that  the  Constitution  and  such  laws  as  were  made  in 
pursuance  of  it  should  be  the  supreme  law  of  the  land. 
These  clauses,  coupled  with  the  evident  and  implied 
necessity,  have  been  held  sufficient  warrant  for  the  courts 
to  declare  laws  unconstitutional.  (Marbury  vs.  Madison, 
I  Cranch,  137  ;  Coxe's  "Judicial  Power  and  Unconstitu- 
tional Legislation,"  prefatory  note,  5.) 

All  we  know  of  the  origin  of  this  doctrine  of  the  power 
of  the  judiciary  is  that  it  first  appeared  in  Virginia  in  an 
obscure  form  and  gradually  grew  and  spread.  It  seems 
to  have  originated,  like  our  other  forms  of  government, 
in  circumstances  and  necessities,  and  was  adopted  for 
the  reason  that  it  was  obviously  convenient  It  was  not 
a  common  doctrine  in  Europe.  On  the  contrary,  most 
of  the  European  governments  expressly  denied  it  But, 
in  order  to  show  that  it  might  possibly  have  a  European 
source,  Mr.  Coxe  has  given  at  length  and  most  learnedly 
all  the  instances  of  something  similar  in  the  ancient  laws 
of  England,  France,  Germany,  and  other  countries.  He 
gives  not  a  particle  of  proof  to  show  that  the  origina- 
tors of  the  doctrine  in  this  country  were  guided  by,  or 
even  knew  of,  any  of  these  foreign  forms,  and,  as  they 
are  all  very  recondite  and  ancient,  it  is  not  likely  that 
they  knew  of  them. 

In  fact,  in  the  Virginia  case  of  Commonwealth  vs. 
Caton  (4  Call,  5),  one  of  the  judges  expressly  says  that 
they  could  receive  no  light  from  foreign  sources  : 

186 


Evolution  from  the  Charters 

"The  constitutions  of  other  governments  in  Europe  or  else- 
where seem  to  throw  little  light  upon  this  question,  since  we  have 
a  written  record  of  that  which  the  citizens  of  this  State  have  adopted 
as  their  social  compact,  and  beyond  which  we  need  not  extend  our 
researches."     (4  Call,  17.) 

When  Gerry  mentioned  the  subject  in  the  convention 
which  framed  the  Constitution,  he  referred  not  to  foreign 
sources,  but  to  the  instances  in  our  own  country.  In 
the  Virginia  case  of  Commonwealth  vs.  Caton  the  judges 
work  out  the  problem  by  the  natural  process  that  any 
law  violating  the  Constitution  must  necessarily  be  void, 
which  was  the  same  principle  that  William  Penn  had 
announced  in  his  Frame  of  1683.  The  Virginia  judges 
merely  take  the  further  step  of  announcing  that  the 
judiciary  must  necessarily  have  the  power  of  declaring 
such  a  law  void  in  any  case  which  brings  it  before  them. 

Any  violation  of  the  union  to  be  considered  by  the  commis- 
sioners.    (New  England  Union  of  1643.) 

A  proviso  that  the  laws  be  not  against  the  interest  of  the  pro- 
prietors or  contrary  to  the  constitution.  (Concessions  of  East  Jer- 
sey, 1665.) 

Laws  suspected  of  unconstitutionality  may  be  protested  and  re- 
considered, and  all  laws  shall  cease  their  operation  at  the  end  of 
a  hundred  years,     (Locke's  Carolina  Constitution  of  1669.) 

The  legislature  not  to  make  laws  which  contradict  the  consti- 
tution, and  those  members  of  the  legislature  who  take  part  in 
making  such  laws  to  be  punished  as  traitors.  (Concessions  of 
West  Jersey  of  1677.) 

Anything  procured  contrary  to  the  constitution  shall  be  void. 
(Pennsylvania  Frame  of  April  2,  1683.) 

The  above  provision  is  repeated  in  the  Pennsylvania  Frame  of 
1683  and  in  the  Pennsylvania  charter  of  privileges  of  1701. 

No  part  of  the  constitution,  with  certain  exceptions,  ought  ever 
to  be  violated.     (Delaware  Constitution  of  1776.) 

187 


Evolution  of  the  Constitution 

The  legislature  cannot  alter  or  infringe  any  part  of  the  consti- 
tution, and  a  council  of  censors  is  provided  to  protect  the  consti- 
tution from  violation.     (Pennsylvania  Constitution  of  1776.) 

A  proviso  that  the  laws  be  not  repugnant  to  the  constitution. 
(Georgia  Constitution  of  1777.) 

The  Vermont  constitution  of  1777  repeats  substantially  the  pro- 
visions from  the  Pennsylvania  constitution  of  1776. 

The  legislature  shall  not  have  power  to  alter  or  infringe  any 
part  of  the  constitution.  (Rejected  Constitution  of  Massachusetts 
of  1778.) 

If  constitution  violated  by  Congress,  the  States  may  secede.  If 
a  State  violates  the  constitution,  it  may  be  fined  and  obedience 
compelled  by  force  of  arms.  (Drayton's  Articles  of  Confedera- 
tion,  1778.) 

A  proviso  that  the  laws  be  not  unconstitutional.  (Massachusetts 
Constitution  of  1780.) 

The  above  provision  from  the  Massachusetts  constitution  of 
1780  is  repeated  in  the  New  Hampshire  constitution  of  1784. 

The  Vermont  constitution  of  1786  repeats  the  provision  given 
above  from  the  Pennsylvania  constitution  of  1776,  with  a  change 
as  to  the  number  and  manner  of  electing  the  censors. 

The  national  legislature  to  negative  unconstitutional  laws 
passed  by  the  States,  and  the  executive  and  some  of  the  judges 
to  be  a  council,  with  a  modified  veto  on  unconstitutional  acts  of 
Congress.     (Randolph's  Plan,  1787.) 

Laws  pursuant  to  the  Constitution  to  be  the  supreme  law  of  the 
land.     (Pinckney's  Plan,  1787.) 

The  judicial  power  to  extend  to  all  cases  arising  under  the 
constitution  and  laws,  and  the  constitution  and  laws  made  in 
pursuance  of  it  to  be  the  supreme  law  of  the  land.  (The  Con- 
stitution.) 

24.  Patents  and  Inventions. 

"That  the  governor  and  provincial  council  shall  ....  en- 
courage and  reward  the  authors  of  useful  sciences  and  laudable 
inventions  in  the  said  province."  (Pennsylvania  Frame  of  April 
2.  1683.) 

18S 


Evolution  from  the  Charters 

The  above  provision  is  repeated  in  the  Pennsylvania  Frame  of 
1683  and  in  the  Pennsylvania  Frame  of  1696. 

' '  The  congress  shall  have  power  to  promote  the  progress  of  sci- 
ence and  useful  arts  by  securing  for  limited  times  to  authors  and 
inventors  the  exclusive  right  to  their  respective  writings  and  dis- 
coveries. ' '     (The  Constitution. ) 

25.  Naturalization. 

"And  We  do,  for  Us,  our  Heirs  and  Successors,  further  give 
and  grant  to  the  said  Treasurer  and  Company,  or  their  Successors 
forever,  that  the  said  Treasurer  and  Company,  or  the  greater  Part 
of  them  for  the  Time  being,  so  in  a  full  and  general  Court  assem- 
bled as  aforesaid,  shall  and  may  from  Time  to  Time,  and  at  all 
times  forever  hereafter,  elect,  choose  and  admit  into  their  Com- 
pany, and  Society,  any  Person  or  Persons,  as  well  Strangers  and 
AHens  born  in  any  Part  beyond  the  Seas  wheresoever,  being  in 
Amity  with  us,  as  our  natural  Liege  Subjects  born  in  any  our 
Realms  and  Dominions  :  And  that  all  such  Persons  so  elected, 
chosen,  and  admitted  to  be  of  the  said  Company  as  aforesaid,  shall 
thereupon  be  taken,  reputed,  and  held,  and  shall  be  free  Members 
of  the  said  Company,  and  shall  have,  hold,  and  enjoy  all  and 
singular  Freedoms,  Liberties,  Franchises,  Privileges,  Immunities, 
Benefits,  Profits,  and  Commodities  whatsoever,  to  the  said  Com- 
pany in  any  Sort  belonging  or  appertaining,  as  fully,  freely  and 
amply  as  any  other  Adventurers  now  being,  or  which  hereafter 
at  any  Time  shall  be  of  the  said  Company,  hath,  have,  shall, 
may,  might,  or  ought  to  have  and  enjoy  the  same  to  all  Intents 
and  Purposes  whatsoever."     (Virginia  Charter  of  161 1-12.) 

"  By  act  as  aforesaid  to  give  unto  all  strangers  as  to  them  shall 
seem  meet  a  naturalization,  and  all  such  freedoms  and  privileges 
within  the  said  province  as  to  his  Majesty's  subjects  do  of  right 
belong,  they  swearing  or  subscribing  as  aforesaid,  which  said 
strangers  so  naturalized  and  privileged  shall  be  in  all  resjsects  ac- 
counted in  the  said  province  as  the  king's  natural  subjects." 
(Concessions  of  East  Jersey,  1665.) 

"Whatsoever  alien  shall,  in  this  form,  before  any  precinct 
189 


Evolution  of  the  Constitution 

register,  subscribe  these  fundamental  constitutions,  shall  be  thereby 
naturalized."     (Locke's  Carolina  Constitution  of  1669.) 

' '  The  legislature  of  the  United  States  shall  have  the  power  to 
establish  uniform  rules  of  naturalization."  (Pinckney's  Plan, 
1787.) 

"The  congress  shall  have  power  to  establish  a  uniform  rule 
of  naturalization. ' '     (The  Constitution.) 

26.  Religious  Liberty. 

The  quotations  under  this  section  show  the  begin- 
ning of  religious  liberty  and  the  ideas  that  have  at 
different  times  prevailed  as  to  exactly  what  religious 
liberty  was. 

In  colonial  times  and  for  some  time  after  the  Revolu- 
tion a  large  part  of  our  people  were  convinced  that  the 
Roman  Church  was  unalterably  opposed  to  both  civil 
and  religious  liberty,  and  that  it  would  destroy  them 
both  if  opportunity  offered.  Accordingly  we  find  that 
liberty  of  conscience  did  not  always  include  papists,  as 
they  were  called,  and  not  infrequently  in  the  constitu- 
tions of  I TJ^  the  members  of  the  Roman  obedience  are 
excluded  from  holding  public  office.  The  most  sweeping 
and  carefully  worded  provision  of  this  sort  was  in  the 
North  Carolina  constitution  of  1776,  which  declared 
that  no  person  could  hold  office  who  denied  the  being 
of  God  or  the  truth  of  the  Protestant  religion,  or  who 
held  "  religious  principles  incompatible  with  the  freedom 
and  safety  of  the  State." 

Religious  liberty  did  not  always  include  what  some 
have  called  "irreligious  liberty,"  and  we  find  that  in 
several  instances  atheists  and  infidels  are  left  without 
protection.     Perhaps  the  most  curious  provision  is  in 

190 


Evolution  from  the  Charters 

the  New  Hampshire  commission  of  1680,  which  allows 
liberty  of  conscience  to  all  Protestants,  and  commands 
that  the  Church  of  England  be  "particularly  counte- 
nanced and  encouraged." 

"  That  our  royall  will  and  pleasure  is,  that  noe  person  within 
the  sayd  colonye,  at  any  tyme  hereafter,  shall  bee  any  wise  mo- 
lested, punished,  disquieted,  or  called  in  question,  for  any  differ- 
ences in  opinione  in  matters  of  religion,  and  doe  not  actually 
disturb  the  civill  peace  of  our  sayd  colony  ;  but  that  all  and  everye 
person  and  persons  may,  from  tyme  to  tyme,  and  at  all  tymes 
hereafter,  freelye  and  fullye  have  and  enjoye  his  and  theire  owne 
judgments  and  consciences,  in  matters  of  religious  concernments, 
throughout  the  tract  of  lande  hereafter  mentioned  ;  they  behaving 
themselves  peaceablie  and  quietlie,  and  not  useing  this  libertie 
to  lycentiousnesse  and  profanenesse,  nor  to  the  civill  injurye  or 
outward  disturbeance  of  others  ;  any  lawe,  statute,  or  clause, 
therein  contayned,  or  to  bee  contayned,  usage  or  custome  of  this 
realme,  to  the  contrary  hereof,  in  any  wise,  notwithstanding." 
(Rhode  Island  Charter  of  1663.) 

"  That  no  person  qualified  as  aforesaid  within  the  said  province 
at  any  time  shall  be  anyways  molested,  punished,  disquieted  or 
called  in  question  for  any  difference  in  opinion  or  practice  in 
matters  of  religious  concernments,  who  do  not  actually  disturb 
the  civil  peace  of  the  said  province,  but  that  all  and  every  such 
person  and  persons  may  from  time  to  time  and  at  all  times  truly 
and  fully  have  and  enjoy  his  and  their  judgments  and  consciences 
in  matters  of  religion  throughout  all  the  said  province ;  they  be- 
having themselves  peaceably  and  quietly  and  not  using  this  liberty 
to  licentiousness,  nor  to  the  civil  injury  or  outward  disturbance  of 
others  ;  any  law,  statute,  or  clause  contained  or  to  be  contained, 
usage  or  custom  of  this  realm  of  England  to  the  contrary  thereof 
in  any  wise  notwithstanding."  (Concessions  of  East  Jersey, 
1665.) 

•  •  No  person  whatsoever  shall  disturb,  molest,  or  persecute 
another  for  his  speculative  opinions  in  religion,  or  his  way  of 
worship."     (Locke's  Carolina  Constitution  of  1669.) 

191 


Evolution  of  the  Constitution 

"  That  no  men,  nor  number  of  men  upon  earth,  hath  power  or 
authority  to  rule  over  men's  consciences  in  religious  matters; 
therefore  it  is  consented,  agreed  and  ordained,  that  no  person  or 
persons  whatsoever  within  the  said  province,  at  any  time  or  times 
hereafter,  shall  be  any  ways  upon  any  pretence  whatsoever,  called 
in  question,  or  in  the  least  punished  or  hurt,  either  in  person, 
estate,  or  privilege,  for  the  sake  of  his  opinion,  judgment,  faith  or 
worship  towards  God  in  matters  of  religion.  But  that  all  and 
every  such  person  and  persons  may  from  time  to  time,  and  at  all 
times,  freely  and  fully  have  and  enjoy  his  and  their  judgments 
and  the  exercise  of  their  consciences  in  matters  of  religious  wor- 
ship throughout  all  the  said  province."  (Concessions  of  West 
Jersey,  1677.) 

"We  do  hereby  require  and  comand  that  liberty  of  con- 
science shall  be  allowed  unto  all  protestants  ;  that  such  especially 
as  shall  be  conformable  to  y'  rites  of  y'  Church  of  Eng**  shall  be 
particularly  countenanced  and  encovu-aged."  (Commission  for 
New  Hampshire  of  1680.) 

' '  We  do  by  these  presents  for  us,  our  heirs  and  successors, 
grant,  establish  and  ordain  that  forever  hereafter  there  shall  be 
liberty  of  conscience  allowed  in  the  worship  of  God  to  all  Chris- 
tians (except  papists)  inhabiting,  or  which  shall  inhabit,  or  be 
resident  within  our  said  province  or  territory."  (Massachusetts 
Charter  of  1 691.) 

"That  no  Person  or  Persons,  inhabiting  in  this  Province  or 
Territories,  who  shall  confess  and  acknowledge  One  almighty  God, 
the  Creator,  Upholder  and  Ruler  of  the  World  ;  and  profess  him 
or  themselves  obliged  to  live  quietly  under  the  Civil  Government, 
shall  be  in  any  Case  molested  or  prejudiced,  in  his  or  their  Person 
or  Estate,  because  of  his  or  their  conscientious  Persuasion  or  Prac- 
tice, nor  be  compelled  to  frequent  or  maintain  any  religious  Wor- 
ship, Place  or  Ministry,  contrary  to  his  or  their  Mind,  or  to  do  or 
suffer  any  other  Act  or  Thing,  contrary  to  their  religious  Per- 
suasion. 

"AND  that  all  Persons  who  also  profess  to  believe  \n  Jesus 
Christ,  the  Saviour  of  the  World,  shall  be  capable  (notwithstand- 
ing their  other  Persuasions  and  Practices  in  Point  of  Conscience 

192 


Evolution  from  the  Charters 

and  Religion)  to  serve  this  Government  in  any  Capacity,  both 
legislatively  and  executively,  he  or  they  solemnly  promising,  when 
lawfully  required.  Allegiance  to  the  King  as  Sovereign,  and 
Fidelity  to  the  Proprietary  and  Governor,  and  taking  the  Attests 
as  now  established  by  the  Law  made  at  New-  Castle,  in  the  Year 
One  Thousand  and  Seven  Hundred,  entitled,  An  Act  directing 
the  Attests  of  several  Officers  and  Ministers,  as  now  amended  and 
confirmed  this  present  Assembly."  (Pennsylvania  Charter  of 
Privileges  of  1701.) 

"And  for  the  greater  ease  and  encouragement  of  our  loving 
subjects  and  such  others  as  shall  come  to  inhabit  in  our  said 
colony,  we  do  by  these  presents,  for  us,  our  heirs  and  successors, 
grant,  establish  and  ordain,  that  forever  hereafter  there  shall  be 
a  liberty  of  conscience  allowed  in  the  worship  of  God  to  all  per- 
sons inhabiting,  or  which  shall  inhabit  or  be  resident  within  our 
said  province,  and  that  all  such  persons,  except  papists,  shall 
have  a  free  exercise  of  religion,  so  they  be  contented  with  the 
quiet  and  peaceable  enjoyment  of  the  same,  not  giving  offence  or 
scandal  to  the  government."     (Georgia  Charter  of  1732.) 

"That  religion,  or  the  duty  which  we  owe  to  our  Creator,  and 
the  manner  of  discharging  it,  can  be  directed  only  by  reason  and 
conviction,  not  by  force  or  violence  ;  and  therefore  all  men  are 
equally  entitled  to  the  free  exercise  of  religion,  according  to  the 
dictates  of  conscience  ;  and  that  it  is  the  mutual  duty  of  all  to 
practice  Christian  forbearance,  love,  and  charity  towards  each 
other."     (Virginia  Bill  of  Rights  of  1776.) 

"That  no  person  shall  ever,  within  this  Colony,  be  deprived  of 
the  inestimable  privilege  of  worshipping  Almighty  God  in  a  man- 
ner agreeable  to  the  dictates  of  his  own  conscience  ;  nor,  under 
any  pretence  whatever,  be  compelled  to  attend  any  place  of  wor- 
ship, contrary  to  his  own  faith  and  judgment ;  nor  shall  any  person 
within  this  Colony  ever  be  obliged  to  pay  tithes,  taxes,  or  any 
other  rates  for  the  purpose  of  building  or  repairing  any  other 
church  or  churches,  place  or  places  of  worship,  or  for  the  main- 
tenance of  any  minister  or  ministry,  contrary  to  what  he  believes 
to  be  right  or  has  deliberately  or  voluntarily  engaged  himself  to 
perform. 

13  193 


Evolution  of  the  Constitution 

"  That  there  shall  be  no  estabhshment  of  any  one  religious  sect 
in  this  Province  in  preference  to  another  ;  and  that  no  Protestant 
inhabitant  of  this  Colony  shall  be  denied  the  enjoyment  of  any 
civil  right,  merely  on  account  of  his  religious  principles  ;  but  that 
all  persons,  professing  a  belief  in  the  faith  of  any  Protestant  sect, 
who  shall  demean  themselves  peaceably  under  the  government, 
as  hereby  established,  shall  be  capable  of  being  elected  into  any 
office  of  profit  or  trust,  or  being  a  member  of  either  branch  of  the 
Legislature,  and  shall  fully  and  freely  enjoy  every  privilege  and 
immunity  enjoyed  by  others  their  fellow-subjects."  (New  Jersey 
Constitution  of  1776.) 

•  •  There  shall  be  no  establishment  of  any  one  religious  sect  in 
this  State  in  preference  to  another  ;  and  no  clergyman  or  preacher 
of  the  gospel,  of  any  denomination,  shall  be  capable  of  holding 
any  civil  office  in  this  State,  or  of  being  a  member  of  either  of  the 
branches  of  the  legislature,  while  they  continue  in  the  exercise  of 
the  pastoral  function,"     (Delaware  Constitution  of  1776.) 

"  That  all  men  have  a  natural  and  unalienable  right  to  worship 
Almighty  God  according  to  the  dictates  of  their  own  consciences 
and  understanding  :  And  that  no  man  ought  or  of  right  can  be 
compelled  to  attend  any  reHgious  worship,  or  erect  or  support 
any  place  of  worship,  or  maintain  any  ministry,  contrary  to,  or 
against,  his  own  free  will  and  consent :  Nor  can  any  man,  who 
acknowledges  the  being  of  a  God,  be  justly  deprived  or  abridged 
of  any  civil  right  as  a  citizen,  on  account  of  his  religious  sentiments 
or  peculiar  mode  of  religious  worship  :  And  that  no  authority  can 
or  ought  to  be  vested  in,  or  assumed  by  any  power  whatever,  that 
shall  in  any  case  interfere  with,  or  in  any  manner  controul,  the 
right  of  conscience  in  the  free  exercise  of  religious  worship." 
(Pennsylvania  Constitution  of  1776.) 

"  That,  as  it  is  the  duty  of  every  man  to  worship  God  in  such 
manner  as  he  thinks  most  acceptable  to  him,  all  persons  profess- 
ing the  Christian  religion  are  equally  entitled  to  protection  in  their 
religious  liberty  ;  wherefore  no  person  ought  by  any  law  to  be 
molested  in  his  person  or  estate  on  account  of  his  religious  per- 
suasion or  profession,  or  for  his  religious  practice  ;  unless,  under 
colour  of  religion,  any  man  shall  disturb  the  good  order,  peace,  or 

194 


Evolution  from  the  Charters 

safety  of  the  State,  or  shall  infringe  the  laws  of  morality,  or  injure 
others,  in  their  natural,  civil,  or  religious  rights  ;  nor  ought  any 
person  to  be  compelled  to  frequent  or  maintain,  or  contribute, 
unless  on  contract,  to  maintain  any  particular  place  of  worship,  or 
any  particular  ministry  ;  yet  the  Legislature  may,  in  their  discretion, 
lay  a  general  and  equal  tax  for  the  support  of  the  Christian  re- 
ligion ;  leaving  to  each  individual  the  power  of  appointing  the 
payment  over  of  the  money,  collected  from  him,  to  the  support 
of  any  particular  place  of  worship  or  minister,  or  for  the  benefit 
of  the  poor  of  his  own  denomination,  or  the  poor  in  general  of 
any  particular  county  :  but  the  churches,  chapels,  glebes,  and  all 
other  property  now  belonging  to  the  church  of  England,  ought  to 
remain  to  the  church  of  England  forever.  And  all  acts  of  Assem- 
bly, lately  passed,  for  collecting  monies  for  building  or  repairing 
particular  churches  or  chapels  of  ease,  shall  continue  in  force  and 
be  executed,  unless  the  Legislature  shall,  by  act,  supersede  or 
repeal  the  same  :  but  no  county  court  shall  assess  any  quantity  of 
tobacco,  or  sum  of  money,  hereafter,  on  the  application  of  any 
vestry-men  or  church-wardens  ;  and  every  encumbent  of  the 
church  of  England,  who  hath  remained  in  his  parish,  and  per- 
formed his  duty,  shall  be  entitled  to  receive  the  provision  and 
support  established  by  the  act  entitled  •  An  act  for  the  support  of 
the  clergy  of  the  church  of  England,  in  this  Province,'  till  the 
November  court  of  this  present  year,  to  be  held  for  the  county  in 
which  his  parish  shall  lie,  or  partly  lie,  or  for  such  time  as  he 
hath  remained  in  his  parish,  and  performed  his  duty."  (Mary- 
land Declaration  of  Rights  of  1776.) 

'  •  That  all  men  have  a  natural  and  unalienable  right  to  wor- 
ship Almighty  God  according  to  the  dictates  of  their  own  con- 
sciences  

"That  no  person,  who  shall  deny  the  being  of  God  or  the 
truth  of  the  Protestant  religion,  or  the  divine  authority  either  of 
the  Old  or  New  Testaments,  or  who  shall  hold  religious  principles 
incompatible  with  the  freedom  and  safety  of  the  State,  shall  be 
capable  of  holding  any  office  or  place  of  trust  or  profit  in  the  civil 
department  within  this  State 

* '  That  there  shall  be  no  establishment  of  any  one  religious 

19s 


Evolution  of  the  Constitution 

church  or  denomination  in  this  State,  in  preference  to  any  other  ; 
neither  shall  any  person,  on  any  pretence  whatsoever,  be  com- 
pelled to  attend  any  place  of  worship  contrary  to  his  own  faith  or 
judgment,  nor  be  obliged  to  pay  for  the  purchase  of  any  glebe,  or 
the  building  of  any  house  of  worship,  or  for  the  maintenance  of 
any  minister  or  ministry,  contrary  to  what  he  believes  right,  or 
has  voluntarily  and  personally  engaged  to  perform  ;  but  all  per- 
sons shall  be  at  liberty  to  exercise  their  own  mode  of  worship  : — 
Provided,  That  nothing  herein  contained  shall  be  construed  to 
exempt  preachers  of  treasonable  or  seditious  discourses  from 
legal  trial  and  punishment."  (North  Carolina  Constitution  of 
1776.) 

"All  persons  whatever  shall  have  the  free  exercise  of  their 
religion,  provided  it  be  not  repugnant  to  the  peace  and  safety  of 
the  State,  and  shall  not,  unless  by  consent,  support  any  teacher 
or  teachers  except  those  of  their  own  profession."  (Georgia 
Constitution  of  1777.) 

"And  whereas  we  are  required,  by  the  benevolent  principles 
of  rational  liberty,  not  only  to  expel  civil  tyranny,  but  also  to 
guard  against  that  spiritual  oppression  and  intolerance  wherewith 
the  bigotry  and  ambition  of  weak  and  wicked  priests  and  princes 
have  scourged  mankind,  this  convention  doth  further,  in  the 
name  and  by  the  authority  of  the  good  people  of  this  State,  ordain, 
determine,  and  declare,  that  the  free  exercise  and  enjoyment  of 
religious  profession  and  worship,  without  discrimination  or  prefer- 
ence, shall  forever  hereafter  be  allowed,  within  this  State,  to  all 
mankind :  Provided,  That  the  liberty  of  conscience,  hereby 
granted,  shall  not  be  so  construed  as  to  excuse  acts  of  licentious- 
ness, or  justify  practices  inconsistent  with  the  peace  or  safety  of 
I  this  State."     (New  York  Constitution  of  1777.) 

"That  all  men  have  a  natural  and  unalienable  right  to  wor- 
ship Almighty  God,  according  to  the  dictates  of  their  own  con- 
sciences and  understanding,  regulated  by  the  word  of  God  ;  and 
that  no  man  ought,  or  of  right  can  be  compelled  to  attend  any 
religious  worship,  or  erect  or  support  any  place  of  worship,  or 
maintain  any  minister,  contrary  to  the  dictates  of  his  conscience  ; 
nor  can  any  man  who  professes  the  Protestant  religion  be  justly 

196 


Evolution  from  the  Charters 

deprived  or  abridged  of  any  civil  right,  as  a  citizen,  on  account 
of  his  reHgious  sentiment,  or  pecuUar  mode  of  reUgious  worship, 
and  that  no  authority  can,  or  ought  to  be  vested  in,  or  assumed 
by,  any  power  whatsoever,  that  shall,  in  any  case,  interfere  with, 
or  in  any  manner  controul,  the  rights  of  conscience,  in  the  free 
exercise  of  religious  worship  :  nevertheless,  every  sect  or  denomi- 
nation of  people  ought  to  observe  the  Sabbath,  or  the  Lord's  day, 
and  keep  up,  and  support,  some  sort  of  religious  worship,  which 
to  them  shall  seem  most  agreeable  to  the  revealed  will  of  God." 
(Vermont  Constitution  of  1777.) 

"  No  person,  unless  of  the  Protestant  religion,  shall  be  gov- 
ernor, lieutenant-governor,  a  member  of  the  senate  or  of  the 
house  of  representatives,  or  hold  any  judiciary  employment 
within  this  State 

"The  free  exercise  and  enjoyment  of  religious  profession  and 
worship  shall  forever  be  allowed  to  every  denomination  of  Prot- 
estants within  this  State."  (Rejected  Constitution  of  Massa- 
chusetts of  1778.) 

"That  all  persons  and  religious  societies  who  acknowledge 
that  there  is  one  God,  and  a  future  state  of  rewards  and  punish- 
ments, and  that  God  is  publicly  to  be  worshipped,  shall  be  freely 
tolerated.  The  Christian  Protestant  religion  shall  be  deemed, 
and  is  hereby  constituted  and  declared  to  be,  the  estabhshed 
religion  of  this  State.  That  all  denominations  of  Christian  Prot- 
estants in  this  State,  demeaning  themselves  peaceably  and  faith- 
fully, shall  enjoy  equally  religious  and  civil  privileges. 

"  No  person  shall  be  eligible  to  a  seat  in  the  said  senate  unless 
he  be  of  the  Protestant  religion.  No  person  shall  be  eligible  to 
sit  in  the  house  of  representatives  unless  he  be  of  the  Protestant 
religion."     (South  Carolina  Constitution  of  1778.) 

"The  future  legislature  of  this  State  shall  make  no  laws  to 
infringe  the  rights  of  conscience  or  any  other  of  the  natural, 
unalienable  rights  of  men,  or  contrary  to  the  laws  of  God  or 
against  the  Protestant  religion 

"All  the  male  inhabitants  of  the  State  of  lawful  age,  paying 
taxes  and  professing  the  Protestant  religion,  shall  be  deemed  legal 
voters  in  choosing  councillors  and  representatives."    [A  property 

197 


Evolution  of  the  Constitution 

qualification  was  also  added.]  (Rejected  Constitution  of  New 
Hampshire  of  1778.) 

"  It  is  the  right  as  well  as  the  duty  of  all  men  in  society,  pub- 
licly and  at  stated  seasons,  to  jvorship  the  Supreme  Being,  the 
great  Creator  and  Preserver  of  the  universe.  And  no  subject 
shall  be  hurt,  molested,  or  restrained,  in  his  person,  liberty,  or 
estate,  for  worshipping  God  in  the  manner  and  season  most  agree- 
able to  the  dictates  of  his  own  conscience,  or  for  his  religious  pro- 
fession or  sentiments,  provided  he  doth  not  disturb  the  public 
peace  or  obstruct  others  in  their  religious  worship.  .  .  . 

"Therefore,  to  promote  their  happiness  and  to  secure  the  good 
order  and  preservation  of  their  government,  the  people  of  this  com- 
monwealth have  a  right  to  invest  their  legislature  with  power  to 
authorize  and  require,  and  the  legislature  shall,  from  time  to 
time,  authorize  and  require  the  several  towns,  parishes,  precincts, 
and  other  bodies-politic  or  religious  societies  to  make  suitable 
provision,  at  their  own  expense,  for  the  institution  of  the  public 
worship  of  God  and  for  the  support  and  maintenance  of  public 
Protestant  teachers  of  piety,  religion,  and  morality  in  all  cases 
where  such  provision  shall  not  be  made  voluntarily.  .  .  . 

"And  the  people  of  this  commonwealth  have  also  a  right  to, 
and  do,  invest  their  legislature  with  authority  to  enjoin  upon  all 
the  subjects  an  attendance  upon  the  instructions  of  the  public 
teachers  aforesaid,  at  stated  times  and  seasons,  if  there  be  any 
on  whose  instructions  they  can  conscientiously  and  conveniendy 
attend."     (Massachusetts  Constitution  of  1780.) 

"  Every  individual  has  a  natural  and  unalienable  right  to  wor- 
ship GOD  according  to  the  dictates  of  his  own  conscience  and 
reason  ;  and  no  subject  shall  be  hurt,  molested,  or  restrained  in 
his  person,  liberty  or  estate  for  worshipping  GOD,  in  the  manner 
and  season  most  agreeable  to  the  dictates  of  his  own  conscience, 
or  for  his  religious  profession,  sentiments  or  persuasion  ;  provided 
he  doth  not  disturb  the  public  peace,  or  disturb  others,  in  their 
religious  worship. 

"As  morality  and  piety,  rightly  grounded  on  evangelical  prin- 
ciples, will  give  the  best  and  greatest  security  to  government,  and 
will  lay  in  the  hearts  of  men  the  strongest  obligations  to  due  sub- 

198 


Evolution  from  the  Charters 

jection  ;  and  as  the  knowledge  of  these  is  most  likely  to  be  propa- 
gated through  a  society  by  the  institution  of  the  public  worship  of 
the  DEITY,  and  of  public  instruction  in  morality  and  religion  ; 
therefore,  to  promote  those  important  purposes,  the  people  of  this 
state  have  a  right  to  impower,  and  do  hereby  fully  impower  the 
legislature  to  authorize  from  time  to  time,  the  several  towns, 
parishes,  bodies-corporate,  or  religious  societies  within  this  state, 
to  make  adequate  provision  at  their  own  expence,  for  the  support 
and  maintenance  of  public  Protestant  teachers  of  piety,  religion 
and  morality 

"That  no  person  shall  be  capable  of  being  elected  a  senator 
who  is  not  of  the  Protestant  religion."  (New  Hampshire  Consti- 
tution of  1784.) 

The  Vermont  constitution  of  1786  repeats  the  provision  given 
above  from  the  Pennsylvania  constitution  of  1776. 

"  The  legislature  of  the  United  States  shall  pass  no  law  on  the 
subject  of  religion."     (Pinckney's  Plan,  1787.) 

"  No  religious  test  shall  ever  be  required  as  a  qualification  to 
any  office  or  pubUc  trust  under  the  United  States."  (The  Consti- 
tution.) 

"Congress  shall  make  no  law  respecting  an  establishment  of 
religion  or  prohibiting  the  free  exercise  thereof."  (P'irst  Amend- 
ment to  the  Constitution.) 

27.  Seizures  and  Searches. 

"That  general  warrants,  whereby  an  officer  or  messenger  may 
be  commanded  to  search  suspected  places  without  evidence  of  a 
fact  committed,  or  to  seize  any  person  or  persons  not  named,  or 
whose  offence  is  not  particularly  described  and  supported  by  evi- 
dence, are  grievous  and  oppressive,  and  ought  not  to  be  granted." 
(Virginia  Bill  of  Rights  of  1776.) 

' '  That  the  people  have  a  right  to  hold  themselves,  their  houses, 
papers,  and  possessions  free  from  search  or  seizure,  and  therefore 
warrants  without  oaths  or  affirmations  first  made,  affording  a  suffi- 
cient foundation  for  them,  and  whereby  any  officer  or  messenger 
may  be  commanded  or  required  to  search  suspected  places,  or  to 

199 


Evolution  of  the  Constitution 

seize  any  person  or  persons,  his  or  their  property,  not  particularly 
described,  are  contrary  to  that  right,  and  ought  not  to  be  gjranted." 
(Pennsylvania  Constitution  of  1776.) 

"  That  all  warrants,  without  oath  or  affirmation,  to  search  sus- 
pected places,  or  to  seize  any  person  or  property,  are  grievous 
and  oppressive ;  and  all  general  warrants — to  search  suspected 
places,  or  to  apprehend  suspected  persons,  without  naming  or 
describing  the  place,  or  the  person  in  special — ^are  illegal,  and 
ought  not  to  be  granted."  (Maryland  Declaration  of  Rights  of 
1776.) 

•  •  That  general  warrants — whereby  an  officer  or  messenger 
may  be  commanded  to  search  suspected  places,  without  evidence 
of  the  fact  committed,  or  to  seize  any  person  or  persons,  not 
named,  whose  offences  are  not  particularly  described,  and  sup- 
ported by  evidence — are  dangerous  to  liberty,  and  ought  not  to  be 
granted."     (North  Carolina  Declaration  of  Rights  of  1776.) 

The  Vermont  constitution  of  1777  repeats  the  provision  given 
above  from  the  Pennsylvania  constitution  of  1776. 

"  Every  subject  has  a  right  to  be  secure  from  all  unreasonable 
searches  and  seizures  of  his  person,  his  houses,  his  papers,  and 
all  his  possessions.  All  warrants,  therefore,  are  contrary  to  this 
right,  if  the  cause  or  foundation  of  them  be  not  previously  sup- 
ported by  oath  or  affirmation,  and  if  the  order  in  the  warrant  to  a 
civil  officer,  to  make  search  in  suspected  places,  or  to  arrest  one 
or  more  suspected  persons,  or  to  seize  their  property,  be  not  ac- 
companied with  a  special  designation  of  the  persons  or  objects  of 
search,  arrest,  or  seizure  ;  and  no  warrant  ought  to  be  issued  but 
in  cases,  and  with  the  formalities,  prescribed  by  the  laws."  (Mas- 
sachusetts Constitution  of  1780.) 

The  above  provision  from  the  Massachusetts  constitution  of 
1780  is  repeated  in  the  New  Hampshire  constitution  of  1784. 

The  Vermont  constitution  of  1 786  repeats  the  provision  given 
above  from  the  Pennsylvania  constitution  of  1776. 

"  The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects  against  unreasonable  searches  and  seizures 
shall  not  be  violated,  and  no  warrants  shall  issue  but  upon  prob- 
able cause,  supported  by  oath  or  affirmation  and  particularly 


Evolution  from  the  Charters 

describing  the  place  to  be  searched  and  the  persons  or  things  to 
be  seized."     (Fourth  Amendment  to  the  Constitution.) 

28.  Trial  by  Jury. 

"That  no  proprietor,  freeholder,  or  inhabitant  of  the  said  prov- 
ince of  West  New  Jersey  shall  be  deprived  or  condemned  of  life, 
limb,  liberty,  estate,  property,  or  any  ways  hurt  in  his  or  their 
privileges,  freedoms,  or  franchises,  upon  any  account  whatsoever, 
without  a  due  trial  and  judgment  passed  by  twelve  good  and 
lawful  men  of  his  neighborhood  first  had  ;  and  that  in  all  causes 
to  be  tried  and  in  all  trials  the  person  or  persons  arraigned  may 
except  against  any  of  the  said  neighborhood,  without  any  reason 
rendered  (not  exceeding  thirty-five),  and,  in  case  of  any  valid  rea- 
son alleged,  against  every  person  nominated  for  that  service.   .  .   . 

' '  That  the  trials  of  all  causes,  civil  and  criminal,  shall  be 
heard  and  decided  by  the  verdict  or  judgment  of  twelve  honest 
men  of  the  neighborhood,  only  to  be  summoned  and  presented 
by  the  sheriff  of  that  division  or  propriety  where  the  fact  or  tres- 
pass is  committed."     (Concessions  of  West  Jersey  of  1677.) 

"That  all  trials  shall  be  by  twelve  men,  and,  as  near  as  may 
be,  peers  or  equals,  and  of  the  neighborhood,  and  men  without 
just  exception  ;  in  cases  of  life,  there  shall  be  first  twenty-four 
returned  by  the  sheriffs,  for  a  grand  inquest,  of  whom  twelve,  at 
least,  shall  find  the  complaint  to  be  true ;  and  then  the  twelve 
men,  or  peers,  to  be  likewise  returned  by  the  sheriff,  shall  have 
the  final  judgment.  But  reasonable  challenges  shall  be  always 
admitted  against  the  said  twelve  men,  or  any  of  them."  (Penn- 
sylvania Laws  Agreed  upon  in  England,  1682.) 

"That  in  all  capital  or  criminal  prosecutions  a  man  hath  a 
right  to  a  speedy  trial  by  an  impartial  jury  of  twelve  men  of  his 
vicinage,  without  whose  unanimous  consent  he  cannot  be  found 
guilty 

"That  in  controversies  respecting  property,  and  in  suits  be- 
tween man  and  man,  the  ancient  trial  by  jury  is  preferable  to  any 
other,  and  ought  to  be  held  sacred."  (Virginia  Bill  of  Rights  of 
1776.) 

"That  the  inestimable  right  of  trial  by  jury  shall  remain  con- 
201 


Evolution  of  the  Constitution 

firmed  as  a  part  of  the  law  of  this  colony  without  repeal  forever. '  * 
(New  Jersey  Constitution  of  1776.) 

"That  in  all  prosecutions  for  criminal  offences  a  man  hath  a 
right  to  a  speedy  public  trial  by  an  impartial  jury  of  the  country, 
without  the  unanimous  consent  of  which  jury  he  cannot  be  found 
guilty."     (Pennsylvania  Constitution  of  1776.) 

"  That  in  all  criminal  prosecutions  every  man  hath  a  right  to  a 
speedy  trial  by  an  impartial  jury,  without  whose  unanimous  con- 
sent he  ought  not  to  be  found  guilty."  (Maryland  Declaration 
of  Rights  of  1776.) 

"That  no  freeman  shall  be  convicted  of  any  crime,  but  by  the 
unanimous  verdict  of  a  jury  of  good  and  lawful  men,  in  open 
court,  as  heretofore  used 

"That  in  all  controversies  at  law,  respecting  property,  the 
ancient  mode  of  trial,  by  jury,  is  one  of  the  best  securities  of  the 
rights  of  the  people,  and  ought  to  remain  sacred  and  inviolable.** 
(North  Carolina  Declaration  of  Rights  of  1776.) 

"  Trial  by  jury  to  remain  inviolate  forever."  (Georgia  Consti- 
tution of  1777.) 

"  Trial  by  jury  in  all  cases  in  which  it  hath  heretofore  been 
used  in  the  colony  of  New  York  shall  be  established  and  remain 
inviolate  forever."     (New  York  Constitution  of  1777.) 

The  Vermont  constitution  of  1777  repeats  the  provision  given 
above  from  the  Pennsylvania  constitution  of  1776. 

"And  the  inestimable  right  of  trial  by  jury  shall  remain  con- 
firmed as  part  of  this  constitution  forever."  (Rejected  Constitu- 
tion of  Massachusetts  of  1778.) 

"The  right  of  trial  by  jury  in  all  cases  as  heretofore  used  in 
this  State  shall  be  preserved  inviolate  forever. "  (Rejected  Con- 
stitution of  New  Hampshire  of  1778.) 

' '  In  all  controversies  concerning  property,  and  in  all  suits 
between  two  or  more  persons,  except  in  cases  in  which  it  has 
heretofore  been  otherways  used  and  practised,  the  parties  have  a 
right  to  a  trial  by  jury  ;  and  this  method  of  procedure  shall  be 
held  sacred,  unless,  in  causes  arising  on  the  high  seas,  and  such 
as  relate  to  mariners'  wages,  the  legislature  shall  hereafter  find  it 
necessary  to  alter  it."     (Massachusetts  Constitution  of  1780.) 

202 


Evolution  from  the  Charters 

The  above  provision  from  the  Massachusetts  constitution  of 
1780  is  repeated  in  the  New  Hampshire  constitution  of  1784. 

"  In  all  criminal  prosecutions  the  accused  shall  enjoy  the  right 
to  a  speedy  and  public  trial  by  an  impartial  jury  of  the  State  and 
district  wherein  the  crime  shall  have  been  committed,  which  dis- 
trict shall  have  been  previously  ascertained  by  law,  and  to  be 
informed  of  the  nature  and  cause  of  the  accusation  ;  to  be  con- 
fronted with  the  witnesses  against  him  ;  to  have  compulsory  process 
for  obtaining  witnesses  in  his  favor,  and  to  have  the  assistance  of 
counsel  for  his  defence."  (Sixth  Amendment  to  the  Constitu- 
tion.) 

"In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved, 
and  no  fact  tried  by  a  jury  shall  be  otherwise  re-examined  in  any 
court  of  the  United  States  than  according  to  the  rules  of  the 
common  law."     (Seventh  Amendment  to  the  Constitution.) 

29.  Prisoners  to  have  Counsel  and  Witnesses. 

"That  all  criminals  shall  have  the  same  privileges  of  witnesses 
and  council  as  their  prosecutors."  (Pennsylvania  Charter  of 
Privileges  of  1701.) 

"That  in  all  capital  or  criminal  prosecutions  a  man  hath  a 
right  to  demand  the  cause  and  nature  of  his  accusation,  to  be 
confronted  with  the  accusers  and  witnesses,  to  call  for  evidence 
in  his  favor ;  nor  can  he  be  compelled  to  give  evidence  against 
himself."     (Virginia  Bill  of  Rights  of  1776.) 

"  That  in  all  prosecutions  for  criminal  offences,  a  man  hath  a 
right  to  be  heard  by  himself  and  his  council,  to  demand  the  cause 
and  nature  of  his  accusation,  to  be  confronted  with  the  witnesses, 
to  call  for  evidence  in  his  favor  ;  nor  can  he  be  compelled  to  give 
evidence  against  himself. ' '     (Pennsylvania  Constitution  of  1 776.) 

"That,  in  all  criminal  prosecutions,  every  man  hath  a  right  to 
be  informed  of  the  accusation  against  him  ;  to  have  a  copy  of  the 
indictment  or  charge  in  due  time  (if  required)  to  prepare  for  his 
defence  ;  to  be  allowed  counsel ;  to  be  confronted  with  the  wit- 
nesses against  him  ;  to  have  process  for  his  witnesses ;  to  ex- 

203 


Evolution  of  the  Constitution 

amine  the  witnesses,  for  and  against  him,  on  oath.'*     (Maryland 
Declaration  of  Rights  of  1776.) 

"  That,  in  all  criminal  prosecutions,  every  man  has  a  right  to 
be  informed  of  the  accusation  against  him,  and  to  confront  the 
accusers  and  witnesses  with  other  testimony,  and  shall  not  be 
compelled  to  give  evidence  against  himself."  (North  Carolina 
Declaration  of  Rights  of  1776.) 

"  And  it  is  further  ordained.  That  in  every  trial  on  impeach- 
ment, or  indictment  for  crimes  or  misdemeanors,  the  party  im- 
peached or  indicted  shall  be  allowed  counsel,  as  in  civil  actions. ' ' 
(New  York  Constitution  of  1777.) 

The  Vermont  constitution  of  1777  repeats  the  provision  given 
above  from  the  Pennsylvania  constitution  of  1776. 

"  And  on  every  trial,  as  well  on  impeachments  as  others,  the 
party  accused  shall  be  allowed  counsel."  (South  Carolina  Con- 
stitution of  1778.) 

"  No  subject  shall  be  held  to  answer  for  any  crime  or  offence 
until  the  same  is  fully  and  plainly,  substantially  and  formally, 
described  to  him  ;  or  be  compelled  to  accuse,  or  furnish  evidence 
against  himself;  and  every  subject  shall  have  a  right  to  produce 
all  proofs  that  may  be  favorable  to  him  ;  to  meet  the  witnesses 
against  him  face  to  face,  and  to  be  fully  heard  in  his  defence 
by  himself,  or  his  counsel  at  his  election."  (Massachusetts  Con- 
stitution of  1780.) 

The  above  provision  from  the  Massachusetts  constitution  of 
1780  is  repeated  in  the  New  Hampshire  constitution  of  1784. 

The  Vermont  constitution  of  1786  repeats  the  provision  given 
above  from  the  Pennsylvania  constitution  of  1776. 

"Nor  shall  [any  person]  be  compelled  in  any  criminal  case 
to  be  a  witness  against  himself."  (Fifth  Amendment  to  the 
Constitution.) 

"  In  all  criminal  prosecutions  the  accused  shall  enjoy  the  right 
to  be  informed  of  the  nature  and  cause  of  the  accusation  ;  to  be 
confronted  with  the  witnesses  against  him  ;  to  have  compulsory 
process  for  obtaining  witnesses  in  his  favor,  and  to  have  the 
assistance  of  counsel  for  his  defence."  (Sixth  Amendment  to 
the  Constitution.) 

204 


Evolution  from  the  Charters 

30.    Excessive  Bail  and  Fines  and  Cruel  Punish- 
ments. 

"That  all  fines  shall  be  moderate."  (Pennsylvania  Laws 
Agreed  upon  in  England,  1682.) 

' '  That  excessive  bail  ought  not  to  be  required,  nor  excessive 
fines  imposed,  nor  cruel  and  unusual  punishments  inflicted." 
(Virginia  Bill  of  Rights  of  1776.) 

"  Excessive  bail  shall  not  be  exacted  for  bailable  offences,  and 
all  fines  shall  be  moderate."    (Pennsylvania  Constitution  of  1776.) 

' '  That  sanguinary  laws  ought  to  be  avoided,  as  far  as  is  con- 
sistent with  the  safety  of  the  State  :  and  no  law,  to  inflict  cruel 
and  unusual  pains  and  penalties,  ought  to  be  made  in  any  case, 
or  at  any  time  hereafter.   .  .  . 

"That  excessive  bail  ought  not  to  be  required,  nor  excessive 
fines  imposed,  nor  cruel  or  unusual  punishments  inflicted,  by  the 
courts  of  law."     (Maryland  Declaration  of  Rights  of  1776.) 

"That  excessive  bail  should  not  be  required,  nor  excessive 
fines  imposed,  nor  cruel  or  unusual  punishments  inflicted." 
(North  Carolina  Constitution  of  1776.) 

' '  Excessive  fines  shall  not  be  levied,  nor  excessive  bail  de- 
manded."    (Georgia  Constitution  of  1777.) 

The  Vermont  constitution  of  1777  repeats  the  provision  given 
above  from  the  Pennsylvania  constitution  of  1776. 

' '  No  magistrate  or  court  of  law  shall  demand  excessive  bail 
or  sureties,  impose  excessive  fines,  or  inflict  cruel  or  unusual  pun- 
ishments."    (Massachusetts  Constitution  of  1780.) 

The  above  provision  from  the  Massachusetts  constitution  of 
1780  is  repeated  in  the  New  Hampshire  constitution  of  1784. 

"  Excessive  bail  shall  not  be  required,  nor  excessive  fines  im- 
posed, nor  cruel  and  unusual  punishments  inflicted."  (Eighth 
Amendment  to  the  Constitution.) 

31.  Twice  in  Jeopardy. 
"No  subject*  shall  be  liable  to  be  tried  after  an  acquittal  for 

*  The  use  of  the  word  subject  instead  of  citizen  three  years  after  the 
battle  of  Yorktown  and  eight  years  afier  the  Declaration  of  Independence 

205 


Evolution  of  the  Constitution 

the  same  crime  or  offence.*'  (New  Hampshire  Constitution  of 
1784.) 

"  Nor  shall  any  person  be  subject  for  the  same  offence  to  be 
twice  put  in  jeopardy  of  life  or  limb."  (Fifth  Amendment  to  the 
Constitution.) 

32.  Freedom  of  the  Press. 

"That  the  freedom  of  the  press  is  one  of  the  great  bulwarks 
of  liberty,  and  can  never  be  restrained  but  by  despotic  govern- 
ments."    (Virginia  Bill  of  Rights  of  1776.) 

"That  the  people  have  a  right  to  freedom  of  speech,  and  of 
writing,  and  publishing  their  sentiments  ;  therefore  the  freedom 
of  the  press  ought  not  to  be  restrained."  (Pennsylvania  Consti- 
tution of  1776.) 

"  That  the  liberty  of  the  press  ought  to  be  inviolably  pre- 
served."    (Maryland  Declaration  of  Rights  of  1776.) 

"  That  the  freedom  of  the  press  is  one  of  the  great  bulwarks 
of  liberty,  and  therefore  ought  never  to  be  restrained."  (North 
Carolina  Declaration  of  Rights  of  1776.) 

"  Freedom  of  the  press  to  remain  inviolate  forever."  (Georgia 
Constitution  of  1777.) 

The  Vermont  constitution  of  1777  repeats  the  provision  given 
above  from  the  Pennsylvania  constitution  of  1776. 

"That  the  liberty  of  the  press  be  inviolably  preserved." 
(South  Carolina  Constitution  of  1778.) 

' '  The  liberty  of  the  press  is  essential  to  the  security  of  freedom 
in  a  State  ;  it  ought  not,  therefore,  to  be  restrained  in  this  com- 
monwealth."    (Massachusetts  Constitution  of  1780.) 

"  The  liberty  of  the  press  is  essential  to  the  security  of  freedom 
in  a  State  ;  it  ought,  therefore,  to  be  inviolably  preserved."  (New 
Hampshire  Constitution  of  1784.) 

The  Vermont  constitution  of  1786  repeats  substantially  the 

seems  curious  nowadays.  But  the  word  was  used  for  a  long  time  after 
the  Revolution  to  describe  the  people  of  a  republic  as  well  as  those  who 
lived  under  a  monarchy.  They  were  all  alike  considered  as  subject  to 
the  government  and  laws. 

206 


Evolution  from  the  Charters 

provision  given  above  from  the  Pennsylvania  constitution  of 
1776. 

"  The  legislature  of  the  United  States  shall  pass  no  law  touch- 
ing or  abridging  the  liberty  of  the  press. ' '  (Pinckney'  s  Plan  of 
1787.) 

' '  Congress  shall  make  no  law  abridging  the  freedorn  of  speech 
or  of  the  press."     (First  Amendment  to  the  Constitution.) 

33.  Right  to  Petition. 

"  That  it  shall  be  lawful  for  any  person  or  persons  during  the 
session  of  any  general  free  assembly  in  that  province  to  address, 
remonstrate  or  declare  any  suffering,  danger  or  grievance,  or  to 
propose,  tender  or  request  any  privilege,  profit  or  advantage  to 
the  said  province,  they  not  exceeding  the  number  of  one  hundred 
persons."     (Concessions  of  West  Jersey  of  1677.) 

' '  That  the  people  have  a  right  to  assemble  together,  to  con- 
sult for  their  common  good,  to  instruct  their  representatives,  and 
to  apply  to  the  legislature  for  redress  of  grievances,  by  address, 
petition,  or  remonstrance."     (Pennsylvania  Constitution  of  1776.) 

"That  every  man  hath  a  right  to  petition  the  Legislature,  for 
the  redress  of  grievances,  in  a  peaceable  and  orderly  manner." 
(Maryland  Declaration  of  Rights  of  1776.) 

' '  That  the  people  have  a  right  to  assemble  together,  to  consult 
for  their  common  good,  to  instruct  their  Representatives,  and  to 
apply  to  the  Legislature,  for  redress  of  grievances."  (North 
Carolina  Declaration  of  Rights  of  1776.) 

The  Vermont  constitution  of  1777  repeats  the  provision  given 
above  from  the  Pennsylvania  constitution  of  1776. 

"  The  people  have*a  right,  in  an  orderly  and  peaceable  man- 
ner, to  assemble  to  consult  upon  the  common  good  ;  give  instruc- 
tions to  their  representatives,  and  to  request  of  the  legislative 
body,  by  the  way  of  addresses,  petitions,  or  remonstrances,  re- 
dress of  the  wrongs  done  them,  and  of  the  grievances  they  suffer." 
(Massachusetts  Constitution  of  1780.) 

The  above  provision  from  the  Massachusetts  constitution  of 
1780  is  repeated  in  the  New  Hampshire  constitution  of  1784. 

207 


Evolution  of  the  Constitution 

The  Vermont  constitution  of  1 786  repeats  the  provision  given 
above  from  the  Pennsylvania  constitution  of  1776, 

"  Congress  shall  make  no  law  abridging  the  right  of  the  people 
peaceably  to  assemble,  and  to  petition  the  government  for  a 
redress  of  grievances. "     (First  Amendment  to  the  Constitution,) 

34.  Right  to  Bear  Arms. 

"That  the  people  have  a  right  to  bear  arms  for  the  defence 
of  themselves  and  the  State."  (Pennsylvania  Constitution  of 
1776.) 

• '  That  the  people  have  a  right  to  bear  arms  for  the  defence 
of  the  State."     (North  Carolina  Declaration  of  Rights  of  1776.) 

The  Vermont  constitution  of  1777  repeats  the  provision  given 
above  from  the  Pennsylvania  constitution  of  1776. 

"  The  people  have  a  right  to  keep  and  bear  arms  for  the  com- 
mon defence."     (Massachusetts  Constitution  of  1780.) 

The  Vermont  constitution  of  1 786  repeats  the  provision  given 
above  from  the  Pennsylvania  constitution  of  1776. 

' '  A  well-regulated  militia  being  necessary  to  the  security  of  a 
free  state,  the  right  of  the  people  to  keep  and  bear  arms  shall 
not  be  infringed."     (Second  Amendment  to  the  Constitution.) 

35.  Militia  Necessary;  Military  Subordinate. 

"  That  a  well-regulated  militia,  composed  of  the  body  of  the 
people,  trained  to  arms,  is  the  proper,  natural,  and  safe  defence 
of  a  free  state  ;  that  standing  armies,  in  time  of  peace,  should  be 
avoided,  as  dangerous  to  liberty  ;  and  that  in  all  cases  the  mili- 
tary should  be  under  strict  subordination  to,  and  governed  by, 
the  civil  power."     (Virginia  Bill  of  Rights  of  1776.) 

' '  As  standing  armies  in  the  time  of  peace  are  dangerous  to 
liberty,  they  ought  not  to  be  kept  up  ;  And  that  the  military 
should  be  kept  under  strict  subordination  to,  and  governed  by, 
the  civil  power."     (Pennsylvania  Constitution  of  1776.) 

"  That  a  well-regulated  militia  is  the  proper  and  natural  de- 
fence of  a  free  government. 

"That  standing  armies  are  dangerous  to  liberty,  and  ought 
not  to  be  raised  or  kept  up,  without  consent  of  the  Legislature. 

208 


Evolution  from  the  Charters 

"That  in  all  cases,  and  at  all  times,  the  military  ought  to  be 
under  strict  subordination  to  and  control  of  the  civil  power." 
(Maryland  Declaration  of  Rights  of  1776.) 

"  As  standing  armies  in  time  of  peace  are  dangerous  to  lib- 
erty, they  ought  not  to  be  kept  up  ;  and  that  the  military  should 
be  kept  under  strict  subordination  to,  and  governed  by,  the  civil 
power."     (North  Carolina  Declaration  of  Rights  of  1776.) 

The  Vermont  constitution  of  1777  repeats  the  provision  given 
above  from  the  Pennsylvania  constitution  of  1776. 

"  That  the  military  be  subordinate  to  the  civil  power  of  the 
State."     (South  Carolina  Constitution  of  1778.) 

"And  as  in  time  of  peace  armies  are  dangerous  to  liberty, 
they  ought  not  to  be  maintained  without  the  consent  of  the  legis- 
lature ;  and  the  military  power  shall  always  be  held  in  an  exact 
subordination  to  the  civil  authority  and  be  governed  by  it." 
(Massachusetts  Constitution  of  1780.) 

' '  A  well-regulated  militia  is  the  proper,  natural,  and  sure  de- 
fence of  a  state. 

"Standing  armies  are  dangerous  to  liberty,  and  ought  not  to 
be  raised  or  kept  up  without  the  consent  of  the  legfislature. 

"  In  all  cases,  and  at  all  times,  the  military  ought  to  be  under 
strict  subordination  to,  and  governed  by,  the  civil  power."  (New 
Hampshire  Constitution  of  1784.) 

The  Vermont  constitution  of  1786  repeats  the  provision  gfiven 
above  from  the  Pennsylvania  constitution  of  1 776. 

"A  well-regulated  militia  being  necessary  to  the  security  of  a 
free  state,  the  right  of  the  people  to  keep  and  bear  arms  shall 
not  be  infringed."     (Second  Amendment  to  the  Constitution.) 

36.  Quartering  Soldiers  in  Time  of  Peace. 

"That  no  soldier  ought  to  be  quartered  in  any  house,  in  time 
of  peace,  without  the  consent  of  the  owner  ;  and  in  time  of  war, 
in  such  manner  only,  as  the  Legislature  shall  direct."  (Mary- 
land Declaration  of  Rights  of  1776.) 

"  In  time  of  peace,  no  soldier  ought  to  be  quartered  in  any 
house  without  the  consent  of  the  owner  ;  and  in  time  of  war,  such 
quarters  ought  not  to  be  made  but  by  the  civil  magistrate,  in  a 
14  209 


Evolution  of  the  Constitution 

manner  ordained  by  the  legislature. ' '  (Massachusetts  Constitu- 
tion of  1780,) 

The  above  provision  from  the  Massachusetts  constitution  of 
1780  is  substantially  repeated  in  the  New  Hampshire  constitution 
of  1784. 

"  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house 
without  the  consent  of  the  owner ;  nor  in  time  of  war  but  in  a 
manner  to  be  prescribed  by  law."  (Third  Amendment  to  the 
Constitution.) 

37.  Attainder  of  Treason. 

"That  no  law,  to  attaint  particular  persons  of  treason  or 
felony,  ought  to  be  made  in  any  case,  or  at  any  time  hereafter." 
(Maryland  Declaration  of  Rights  of  1776.) 

"  And  that  no  acts  of  attainder  shall  be  passed  by  the  legisla- 
ture of  this  State  for  crimes,  other  than  those  committed  before 
the  termination  of  the  present  war ;  and  that  such  acts  shall  not 
work  a  corruption  of  blood."     (New  York  Constitution  of  1776.) 

"No  bill  of  attainder  shall  be  passed  [by  Congress]. 

' '  No  State  shall  pass  any  bill  of  attainder. '  *  (The  Constitu- 
tion.) 

38.  Ex  Post  Facto  Laws. 

"That  retrospective  laws,  punishing  facts  committed  before 
the  existence  of  such  laws,  and  by  them  only  declared  criminal, 
are  oppressive,  unjust,  and  incompatible  with  liberty  ;  wherefore 
no  ex  post  facto  law  ought  to  be  made."  (Maryland  Declaration 
of  Rights  of  1776.) 

"  That  retrospective  laws,  punishing  facts  committed  before 
the  existence  of  such  laws,  and  by  them  only  declared  criminal, 
are  oppressive,  unjust,  and  incompatible  with  liberty  ;  wherefore 
no  ex  post  facto  law  ought  to  be  made. ' '  (North  Carolina  Declara- 
tion of  Rights  of  1776.) 

"Laws  made  to  punish  for  actions  done  before  the  existence 
of  such  laws,  and  which  have  not  been  declared  crimes  by  pre- 
ceding laws,  are  unjust,  oppressive,  and  inconsistent  with  the 
fundamental  principles  of  a  free  government."  (Massachusetts 
Constitution  of  1780.) 


Evolution  from  the  Charters 

"  Retrospective  laws  are  highly  injurious,  oppressive,  and  un- 
just. No  such  laws,  therefore,  should  be  made,  either  for  the 
decision  of  civil  causes  or  the  punishment  of  offences."  (New 
Hampshire  Constitution  of  1784.) 

• '  No  ex  post  facto  law  shall  be  passed  [by  Congress] . 

"  No  state  shall  pass  any  ex  post  facto  law."  (The  Constitu- 
tion.) 

39.  Titles  of  Nobility,  Offices  of  Profit,  and 
Presents. 

"That  no  title  of  nobiHty  or  hereditary  honors  ought  to  be 
granted  in  this  State,  nor  ought  any  person,  in  public  trust,  to 
receive  any  present  from  any  foreign  prince  or  state,  or  from  the 
United  States,  or  any  of  them,  without  the  approbation  of  this 
State."     (Maryland  Declaration  of  Rights  of  1776.) 

"That  no  hereditary  emoluments,  privileges,  or  honors  ought 
to  be  granted  or  conferred  in  this  State."  (North  Carolina 
Declaration  of  Rights  of  1776.) 

• '  Nor  shall  any  person  holding  any  office  of  profit  or  trust 
under  the  United  States  accept  of  any  present,  emolument,  office, 
or  title  of  any  kind  whatever  from  any  king,  prince,  or  foreign 
state  ;  nor  shall  the  United  States  in  Congress  assembled  grant 
any  title  of  nobility."     (Articles  of  Confederation  of  1778.) 

"Nor  shall  any  person,  holding  any  office  under  the  United 
States,  accept  of  any  present,  emolument,  office,  or  title  from  any 
king  or  foreign  state,  without  being  thereby  absolutely  rendered 
forever  incapable  of  any  public  trust  under  the  United  States." 
(Drayton's  Articles  of  Confederation  of  1778.) 

"The  United  States  shall  not  grant  any  title  of  nobility." 
(Pinckney's  Plan,  1787,) 

• '  No  title  of  nobility  shall  be  granted  by  the  United  States, 
and  no  person  holding  any  office  of  profit  or  trust  under  them 
shall,  without  the  consent  of  the  congress,  accept  of  any  present, 
emolument,  office,  or  title  of  any  kind  whatever  from  any  king, 
prince,  or  foreign  state. 

"  No  state  shall  grant  any  title  of  nobility."  (The  Constitu- 
tion.) 

211 


Evolution  of  the  Constitution 

40.  Martial  Law  and  Habeas  Corpus. 

The  exercise  of  martial  law  and  the  suspension  of  the 
privilege  of  the  writ  of  habeas  corpus  are  somewhat  alike, 
because  both  interrupt  the  process  of  civil  government 
and  destroy  for  a  time  the  liberty  of  the  citizen. 

Martial  law  is  the  right  which  a  military  commander 
assumes  to  suspend  civil  rights  and  the  remedies  founded 
on  them  when  he  thinks  himself  justified  by  the  neces- 
sities of  the  situation.  If  he  makes  a  mistake  in  judg- 
ment, and  it  is  afterwards  decided  that  the  necessities 
of  the  time  did  not  justify  him,  his  acts  are  all  unwar- 
ranted and  void.  This  has  been  the  law  from  time 
immemorial.  But  the  framers  of  the  colonial  charters 
seem  to  have  thought  that  the  power  to  exercise  martial 
law  should  be  expressly  given  in  their  documents,  prob- 
ably for  the  reason  that  its  use  might  often  be  very 
necessary  in  a  wild  country,  and  no  question  should  be 
allowed  to  arise  as  to  the  right 

They  usually  confined  its  use  to  cases  of  actual  war, 
invasion,  or  rebellion.  The  constitutions  of  1776,  how- 
ever, omitted  any  mention  of  it,  except  the  Massachusetts 
constitution  of  1780  and  the  New  Hampshire  constitu- 
tion of  1784.  In  fact,  it  is  not  usually  found  in  modem 
constitutions  at  all,  because  there  is  no  need  of  it  It 
is  in  any  event  a  mere  question  of  necessity  in  the  des- 
perate straits  of  an  invasion  or  a  rebellion,  and  the  time 
and  the  occasion  are  the  only  tests  by  which  the  right  to 
use  it  can  be  decided.  The  conditions  which  may  have 
justified  such  a  right  as  a  part  of  the  colonial  charters 
have  long  since  disappeared. 

But  the  Massachusetts  constitution  of  1780  and  the 


Evolution  from  the  Charters 

New  Hampshire  constitution  of  1784,  which  mentioned 
it  for  the  last  time,  introduced  a  new  power, — namely, 
the  right  to  suspend  the  privilege  of  the  writ  of  habeas 
corpus ;  and  it  was  confined,  as  martial  law  had  been 
confined,  to  the  most  urgent  occasions. 

We  find  a  similar  clause  in  the  National  Constitution, 
with  the  suspension  limited  to  "  cases  of  rebellion  or 
invasion,"  when  "the  public  safety  may  require  it" 
But,  unfortunately,  the  framers  of  the  Constitution  failed 
to  say  which  department  of  the  government  should  have 
the  power  to  suspend  ;  and  it  became  a  serious  question 
in  the  civil  war  whether  the  President  or  Congress  had 
the  power.  In  the  Massachusetts  constitution  of  1780 
it  had  been  given,  expressly  to  the  legislature. 

The  governor  allowed  to  exercise  martial  law  in  rebellion  or 
mutiny.     (Virginia  Charter  of  1609.) 

Lord  Baltimore  allowed  to  exercise  martial  law  in  rebellion  or 
mutiny.     (Maryland  Charter  of  1632.) 

The  above  provision  from  the  Maryland  charter  of  1632  is 
substantially  repeated  in  the  Grant  of  Maine  of  1639. 

The  governor  allowed  to  exercise  martial  law  only  as  occasion 
shall  require.     (Connecticut  Charter  of  1662.) 

The  governor  allowed  to  exercise  martial  law  only  as  occasion 
shall  require.     (Rhode  Island  Charter  of  1663.) 

The  Carolina  charters  of  1663  and  166$  copy  the  provision 
given  above  from  the  Maryland  charter  of  1632. 

The  governor  allowed  to  exercise  martial  law  in  time  of  actual 
war  or  rebellion  as  occasion  shall  necessarily  require,  but  cannot 
grant  commissions  for  exercising  it  except  by  consent  of  his  coun- 
cil.    (Massachusetts  Charter  of  1 69 1.) 

The  corporation  allowed  to  exercise  martial  law  in  time  of 
actual  war  or  rebellion  where  by  law  it  may  be  used.  (Georgia 
Charter  of  1732.) 

The  governor  to  exercise  martial  law  over  the  army  and  navy 
213 


Evolution  of  the  Constitution 

in  war  and  invasion,  and  in  rebellion  declared  by  the  legislature 
to  exist,  as  occasion  shall  necessarily  require  ;  and  the  privilege 
of  habeas  corpus  not  to  be  suspended  by  the  legislature  except 
upon  the  most  urgent  occasions,  and  then  for  a  time  not  exceed- 
ing twelve  months.     (Massachusetts  Constitution  of  1780.) 

The  above  provisions  from  the  Massachusetts  constitution  of 
1 780,  relating  to  both  martial  law  and  habeas  corpus,  are  repeated 
in  the  New  Hampshire  constitution  of  1784,  except  that  the  time 
during  which  the  writ  of  habeas  corpus  may  be  suspended  is 
limited  to  three  months. 

The  privilege  of  habeas  corpus  to  be  suspended  only  in  rebel- 
lion or  invasion.     (Pinckney's  Plan,  1787.) 

The  privilege  of  habeas  corpus  to  be  suspended  only  in  rebel- 
lion or  invasion,  when  the  public  safety  may  require  it.  (The 
Constitution.) 

41.  Eminent  Domain. 

"  That  private  property  ought  to  be  subservient  to  public  uses, 
when  necessity  requires  it ;  nevertheless,  whenever  any  particular 
man's  property  is  taken  for  the  use  of  the  public,  the  owner  ought 
to  receive  an  equivalent  in  money."     (Vermont  Constitution  of 

"  And  whenever  the  public  exigencies  require  that  the  prop- 
erty of  an  individual  should  be  appropriated  to  public  uses,  he 
shall  receive  a  reasonable  compensation  therefor,"  (Massachu- 
setts Constitution  of  1780.) 

' '  That  private  property  ought  to  be  subservient  to  public  uses, 
when  necessity  requires  it ;  nevertheless,  whenever  any  particular 
man's  property  is  taken  for  the  use  of  the  public,  the  owner  ought 
to  receive  an  equivalent  in  money."  (Vermont  Constitution  of 
1786.) 

"Nor  shall  private  property  be  taken  for  public  use  without 
just  compensation."     (Fifth  Amendment  to  the  Constitution.) 


214 


CHAPTER    VI. 

THE  EVOLUTION    OF   FEDERALISM. 
(1643  to  1787.) 

When  we  examine  our  present  National  Constitution, 
it  is  easy  to  see  that  it  consists  of  two  classes  of  pro- 
visions. One  class  is  concerned  with  the  forms  and 
departments  of  administration, — the  house  of  representa- 
tives, the  senate,  the  president,  the  judiciary,  and  their 
relations  to  one  another ;  and  these  provisions,  as  we 
have  shown,  were  gradually  evolved  by  two  hundred 
years'  experience  with  the  local  governments  under  the 
colonial  charters  and  constitutions  and  under  the  consti- 
tutions of  1776. 

The  other  class  of  provisions  is  concerned  with  the 
relations  of  the  states  to  the  general  government,  and 
limits  the  powers  of  the  general  government  and  restricts 
also  the  powers  of  the  states.  This  federalism,  as  it  is 
called,  we  have  not  yet  touched  upon,  because  there 
was  nothing  relating  to  it  in  the  colonial  charters  or  in 
the  constitutions  of  1776.  It  belongs  to  another  line 
of  development 

There  were  thus  two  lines  of  development  One 
started  in  the  forms  of  the  old  charters  for  governing 
each  individual  colony,  and  grew  through  subsequent 
charters,  constitutions,  and  the  constitutions  of  1776, 
producing,  as  we  have  shown,  the  administrative  pro- 

215 


Evolution  of  the  Constitution 

visions  of  the  National  Constitution.  The  other  line 
started  in  plans  of  union  for  defence  against  the  Indians, 
and  passed  through  a  totally  different  set  of  documents, 
until  it  produced  the  Articles  of  Confederation  and  the 
federalism  of  the  Constitution. 

The  development  of  federalism  went  through  similar 
stages,  and  took  almost  as  long  in  its  processes  as  the 
development  of  the  administrative  parts  of  the  Constitu- 
tion. We  usually  think  of  it  as  starting  about  the  time 
of  the  Revolution,  or  at  least  receiving  its  greatest  impetus 
at  that  time.  But  it  had  been  an  important  and  a  much- 
debated  question  for  more  than  a  hundred  years  before 
1776,  and  more  than  twenty  plans  of  union  had  been 
suggested  and  discussed.  In  fact,  during  the  seven- 
teenth and  eighteenth  centuries  the  union  or  confedera- 
tion of  the  colonies  was  one  of  the  great  questions  of 
the  English-speaking  world.* 

If  it  had  not  been  a  great  problem,  and  if  it  had  not 
been  so  long  and  so  much  discussed,  there  would  be  no 
American  federalism  to-day.  Such  a  remarkable  and  suc- 
cessful contrivance  could  not  have  been  made  in  a  year 
or  in  a  decade  ;  could  not  have  been  the  result  of  one 
war  or  revolution.  Neither  imitation  of  other  countries 
nor  sudden  inspiration  or  ingenuity  accounts  for  great 
political  institutions ;  but  natural  conditions,  many 
minds,  many  ages,  and  great  searchings  of  heart 

The  material  which  shows  the  attention  given  to  this 
question  in  colonial  times  and  the  experiments  that  were 

*  It  is  interesting  to  note  that  England  is  again  discussing  the 
confederation  of  her  colonies. 

216 


Evolution  of  Federalism 

made  in  it  has  been  collected  in  an  admirable  manner 
by  Mr.  Frederick  D.  Stone,  librarian  of  the  Historical 
Society  of  Pennsylvania,  and  published  as  an  appendix 
to  the  second  volume  of  Carson's  "  One  Hundredth 
Anniversary  of  the  Constitution."  But  it  is  hardly  as 
yet  much  known  to  constitutional  lawyers  and  scholars, 
and  certainly  not  so  well  known  as  it  deserves. 

Before  we  go  farther  in  the  analysis  of  this  material 
it  may  be  well  to  say  that  the  progression  of  the  subject 
is  union,  confederation,  federalism.  By  union  is  meant 
a  mere  alliance  of  sovereignties  to  accomplish  a  certain 
purpose.  This  purpose  accomplished,  the  union  may 
cease,  or  may  be  continued,  at  the  option  of  the  con- 
tracting parties,  to  accomplish  some  other  purpose. 
Confederation  implies  a  stronger  bond.  The  union  is 
intended  to  be  perpetual, — at  any  rate,  it  is  avowedly 
to  be  perpetual, — and  the  sovereignties  surrender  some 
of  their  local  rights  to  the  union  and  create  a  general 
council  or  some  form  of  general  power  to  conduct  what 
is  for  the  general  interest.  But  it  is  a  consolidation  of 
sovereignties,  and  not  a  government  of  the  people.  The 
general  government  deals  with  the  individual  states,  and 
not  directly  with  the  people. 

Federalism  goes  farther.  More  power  is.  surrendered 
to  the  general  government,  which,  instead  of  being  the 
creature  of  the  sovereignties,  is  the  creature  of  the  mass 
of  the  people  that  compose  the  sovereignties.  The 
general  government,  instead  of  acting  through  the  indi- 
vidual states,  asking  them  for  everything  and  relying  on 
them  to  enforce  its  commands,  now  acts  directly  on  the 
people  and  has  the  power  to  enforce  its  commands  upon 

217 


Evolution  of  the  Constitution 

the  people.  The  states  retain  their  local  rights  and  are 
supposed  to  be  indestructible  entities,  and  the  union 
and  the  general  government  are  supposed  to  be  inde- 
structible. By  this  is  meant  that  the  fusion  has  gone 
so  far  that,  although  the  original  elements  can  still  be 
appreciated  as  distinct  bodies,  they  could  not  be  sepa- 
rated or  resolved  into  their  original  independence  with- 
out great  violence, — that  is,  war  and  revolution. 

What  may  be  the  development  beyond  federalism 
remains  to  be  seen.  But  it  presumably  will  be  a  more 
and  more  complete  fusion,  approaching  homogeneity, 
and  a  stronger  nationality,  until  it  will  be  utterly  im- 
possible, by  violence  or  any  other  known  means,  to 
restore  the  original  elements. 

The  numerous  plans  of  union  in  colonial  times  show 
the  early  phases  of  this  development,  and  the  first  one 
of  which  we  have  any  record  is  the  confederation  of  the 
New  England  colonies  in  1643  to  protect  themselves 
from  the  Indians  or  any  hostile  invasion. 

The  articles  of  this  union  are  very  particular  to  state 
that  each  colony  retains  its  own  local  rights  and  juris- 
diction unimpaired.  The  costs  of  any  war  are  to  be 
divided  among  the  colonies  in  proportion  to  the  popu- 
lation of  each  ;  but  they  are  to  be  "  left  to  their  owne 
just  course  and  custome  of  rating  themselves."  Thus 
the  independence  of  each  party  to  the  union  is  amply 
secured,  and  the  only  step  towards  federalism  is  that 
the  provinces  surrender  a  small  amount  of  their  indi- 
vidual rights  by  agreeing  not  to  make  war  without  per- 
mission of  the  union  unless  suddenly  invaded,  and  by 
agreeing  that  no  two  of  them  shall  join  in  one  juris- 

218 


Evolution  of  Federalism 

diction  without  the  consent  of  the  others.  But  the  local 
rights  of  each  province  are  so  strongly  guaranteed  that 
the  union  is  still  very  far  from  federalism.  This  was 
natural ;  for  the  first  and  most  essential  element  in  feder- 
alism is  a  rigorous  and  distinct  appreciation  of  local  sov- 
ereignty. This  is  the  foundation  ;  for,  as  federalism  is 
an  indestructible  union  of  indestructible  states,  the  states 
must  begin  by  feeling  themselves  indestructible. 

Besides  the  emphasis  it  gives  to  local  rights,  the  New 
England  union  of  1643  shows  the  beginnings  of  certain 
general  provisions  which  can  be  traced  afterwards  until 
they  appear  in  the  National  Constitution  of  1787.  This 
union  of  1643  was  quite  early  in  the  colonial  period. 
The  first  of  the  colonies,  Virginia,  had  been  founded 
only  a  little  more  than  thirty  years,  and  Massachusetts 
was  not  yet  twenty  years  old.  But  the  situation  of  the 
colonies  had  already  made  the  importance  of  their  union 
very  obvious.  People  naturally  talked  about  it,  and  for 
the  next  hundred  years  and  more  we  find  most  of  the 
prominent  people  preparing  plans. 

Besides  its  very  evident  advantage  for  defence  and 
war,  a  union  might  obviate  certain  inconveniences  which 
were  felt  then  as  strongly  as  they  would  be  now  if  we 
had  no  union.  The  colonists  were  of  the  same  nation, 
spoke  the  same  language,  were  living  in  the  same  zone 
of  climate,  soil,  and  products  ;  and  yet  they  were  sepa- 
rated into  distinct  communities,  governed  by  different 
laws,  often  with  very  strong  religious  differences,  and 
with  no  boundaries  between  their  jurisdictions  but  arti- 
ficial lines,  or  natural  ones  which  were  very  easily  passed. 

One  of  the  first  questions  that  arose  among  them  was, 

319 


Evolution  of  the  Constitution 

How  is  a  citizen  of  one  colony  to  be  treated  when  he 
goes  to  visit  or  trade  in  a  neighboring  colony,  where  the 
people  do  not  like  his  opinions  or  where  the  laws  of 
trade  differ  from  those  of  his  home?  Shall  there  be 
certificates  or  passports?  Suppose  one  colony  treats 
the  Indians  in  one  manner,  and  another  colony  in  an- 
other manner,  and  a  third  colony  in  a  third  manner, 
will  not  there  be  endless  misunderstandings  and  wars, 
and  will  it  not  be  impossible  to  stop  the  wars  ?  Sup- 
pose a  servant  escapes  from  his  master  and  takes  refuge 
in  another  colony,  can  the  master  get  him  back  ?  Will 
not  persons  accused  of  crime  in  one  colony  simply  re- 
move into  another  ? 

All  these  questions  were  very  real  and  practical  in 
colonial  times,  and  in  some  respects  more  so  than  we 
might  at  first  suppose.  It  was  no  light  matter  for  a 
Massachusetts  man  in  the  year  1650  to  go  down  into 
Rhode  Island  ;  and  it  was  a  very  serious  matter  for  a 
Rhode  Island  person  to  go  up  into  Massachusetts.  A 
Quaker  woman  who  went  from  Rhode  Island  to  Massa- 
chusetts was  hanged  for  her  temerity,  and  several  Bap- 
tists were  severely  handled.  In  Pennsylvania,  in  Gov- 
ernor Keith's  time,  the  people  were  aroused  to  great 
indignation  because  a  Delaware  sheriff  had  pursued  a 
hue-and-cry  after  a  thief  across  the  boundary ;  and  the 
matter  had  to  be  accommodated  by  allowing  each  pro- 
vince to  pursue  hue-and-cry  for  a  certain  distance  across 
the  line. 

The  differences  between  the  people  of  the  colonies 
were  very  marked  ;  and  even  as  late  as  the  time  of  the 
Revolution  the  delegates  to  the  Continental  Congress 


Evolution  of  Federalism 

are  said  to  have  looked  upon  one  another  at  first  as 
strangers  and  aliens.  In  the  year  1643  i*  would  have 
been  almost  impossible  to  join  all  the  colonies  in  a 
union.  In  New  England,  Rhode  Island  was  so  much 
disliked  by  the  other  provinces  that  it  was  not  included 
in  the  union  we  are  now  considering. 

Massachusetts,  New  Plymouth,  Connecticut,  and  New 
Haven  were,  however,  sufficiently  agreed  among  them- 
selves, and  in  the  union  they  formed  each  was  to  ap- 
point two  commissioners,  and  the  eight  thus  chosen 
were  to  be  the  governing  body  of  the  union.  If  Dutch 
ideas  were  as  prevalent  in  New  England  as  Mr.  Camp- 
bell supposes,  these  commissioners  would  have  voted 
by  colonies,  after  the  manner  of  the  States-General  of 
the  Netherlands.  But  there  was  no  such  arrangement 
Six  of  the  commissioners  could  decide  all  questions ; 
and  if  six  could  not  agree,  the  question  was  to  be  passed 
upon  by  each  of  the  assemblies  of  the  four  colonies, 
and,  if  they  all  agreed,  the  decision  was  to  be  carried  out. 
It  was  a  simple,  ordinary  arrangement  for  a  union,  and 
was  very  much  like  other  leagues  of  nations  the  world 
over.  It  described  itself  as  a  "league  of  friendship  and 
amytie,  offence  and  defence." 

The  problems  of  return  of  servants  and  fugitives  from 
justice  and  intercourse  between  citizens  of  the  different 
colonies  were  attempted  to  be  solved  in  very  much  the 
same  way  as  they  are  now  solved  in  the  National  Con- 
stitution. Runaway  servants  and  fugitives  from  justice 
were  to  be  returned,  and  arrangements  were  to  be  made 
to  give  the  citizens  of  each  colony  equal  rights  in  the 
other  colonies. 

aai 


Evolution  of  the  Constitution 

But  the  colonists  were  not  the  only  persons  who  saw 
and  discussed  the  convenience  of  union.  The  Crown 
and  the  Privy  Council  saw  it,  although  from  a  somewhat 
different  point  of  view.  Charles  II.,  immediately  after 
his  restoration  in  1660,  created  a  council  for  foreign 
plantations,  which  was  to  correspond  with  the  governors 
and  devise  means  for  bringing  the  colonies  into  a  more 
uniform  government 

Between  twenty-five  and  thirty  years  later  James  II. 
attempted  to  go  much  further, — to  vacate  all  the  colonial 
charters  and  unite  all  the  colonies  from  the  Delaware  to 
the  St  Lawrence  under  one  government  composed  of  a 
legislative  council  appointed  by  the  king  and  a  captain- 
general  as  governor.  He  had  gone  so  far  as  to  appoint 
Sir  Edmund  Andros  to  be  the  captain-general,  when  he 
was  dethroned  by  William  III.,  who  took  no  interest 
in  his  plan  of  union. 

The  council  for  foreign  plantations  which  Charles  II. 
had  established  was  abolished  in  1674,  and  ever  after  that 
the  affairs  of  the  colonies  were  in  the  hands  of  the  Privy 
Council,  who  managed  them  through  a  committee  known 
as  The  Lords  of  Trade  and  Plantations.  This  committee 
and  the  Privy  Council  governed  the  colonies.  They 
informed  themselves  on  all  colonial  affairs  and  recom- 
mended measures  to  the  king.  They  did  not  properly 
constitute  a  union  of  the  colonies,  but  they  often  pro- 
posed plans  of  union,  usually  from  the  point  of  view  of 
military  convenience  to  resist  the  French  and  obtain  sup- 
plies and  tribute  from  the  colonies  more  easily.  Their 
plans  were  seldom  in  the  direction  of  liberty,  and  are  not 
so  interesting  as  those  of  the  colonists  themselves. 


Evolution  of  Federalism 

After  the  New  England  union  of  1643  similar  attempts 
appear  in  the  next  sixty  years  among  other  colonies  to 
join  in  unions  of  some  form  or  other,  usually  for  treaties 
or  war  with  the  Indians.  Some  of  them  were  more  or 
less  successful  in  accomplishing  their  object,  but  they 
furnish  us  with  no  elaborate  provisions  like  those  of  the 
New  England  union.  They  were,  in  fact,  temporary 
unions,  and  even  the  New  England  union,  though  in- 
tended to  be  perpetual,  became  obsolete  within  twenty- 
five  years,  and  had  accomplished  little  or  nothing. 

An  attempt  at  union  after  the  niassacre  at  Schenectady 
in  1690  is  noteworthy  as  including  the  New  England 
colonies.  New  York,  Virginia,  and  Maryland, — the  near- 
est approach  to  a  union  of  all  the  colonies  that  had  as 
yet  been  tried, — but  only  delegates  from  Massachusetts, 
Plymouth,  Connecticut,  and  New  York  attended.  Al- 
though nothing  remarkable  was  accomplished  by  any 
of  these  ventures,  there  is  evidence  of  considerable  dis- 
cussion of  the  subject  and  desire  and  demand  for  union 
from  all  quarters, — from  the  colonists  as  well  as  from 
the  Privy  Council  in  England. 

In  1696-97  we  have  a  definite  plan  drawn  up  in 
writing  by  William  Penn  and  submitted  to  the  Lords  of 
Trade  and  Plantations.  It  was  brought  about  by  one  of 
those  natural  conditions  and  inconveniences  which,  as 
we  have  shown,  were  steadily  driving  the  people  towards 
union  and  federalism.  Penn  at  that  time  was  not  only 
proprietor  of  Pennsylvania,  but  also  one  of  the  proprie- 
tors of  East  Jersey.  Finding  that  New  York  was  col- 
lecting customs  on  goods  sent  to  the  Jerseys,  and  that 
there  was  much  difficulty  in  determining  the  quota  of 

223 


Evolution  of  the  Constitution 

troops  from  East  Jersey  for  the  defence  of  New  York,  he 
proposed  that  such  matters  should  be  settled  by  a  union 
or  general  government  of  some  sort  In  other  words, 
he  was  striving  for  the  settlement  of  two  questions  which 
are  now  settled  by  the  National  Constitution. 

This  plan  of  Penn's  is  the  first  which  included  all  the 
colonies.  The  others  had  been  sectional,  although  show- 
ing a  tendency  to  increzise  the  number  of  the  sections. 

Penn  started  with  the  same  arrangement  that  had  been 
adopted  in  the  New  England  union  of  1643,  and  pro- 
vided for  two  deputies  to  be  appointed  by  each  colony. 
The  twenty  deputies  thus  appointed  were  to  be  called 
the  congress,  which  is  apparently  the  first  use  of  that 
word  for  an  American  assembly  ;  and  it  is  rather  remark- 
able that  this  congress  of  Penn's  should  be  not  only  the 
first  suggestion  of  a  representative  legislature  for  all  the 
colonies,  but  should  have  the  same  name  that  was  after- 
wards given  in  the  Revolution  and  that  is  still  retained. 

The  New  England  union  had  been  merely  a  legis- 
lative body  without  any  executive  head.  But  Penn's 
congress  was  to  be  presided  over  by  a  commissioner 
appointed  by  the  king,  and,  as  New  York  would  be  the 
most  central  place  for  the  congress  to  meet  in,  the  New 
York  governor  should  "  be  the  king's  high  commis- 
sioner during  the  session,  after  the  manner  of  Scotland." 

This  passage  is  worth  observing  for  the  phrase  "  after 
the  manner  of  Scotland,"  because  so  much  has  been 
recently  written  about  the  Dutch  origin  of  our  institu- 
tions, and  it  has  been  particularly  urged  by  Mr.  Camp- 
bell that  Penn's  having  had  a  Dutch  mother  and  having 
travelled  extensively  in  Holland  gave  a  tinge  of  Dutch 

224 


Evolution  of  Federalism 

ideas  to  the  laws  and  constitutions  which  he  established 
in  America.  But  here  we  find  him  confessing  that  he 
is  guided  in  one  particular  by  a  Scotch  model,  and  it  is 
not  an  unfair  inference  that  if  he  admits  an  imitation  in 
this  instance  he  would  probably  admit  it  in  others.  In 
none  of  his  laws  or  constitutions,  however,  can  a  single 
word  be  found  implying  a  Dutch  origin. 

After  providing  for  an  executive,  Penn's  plan  goes  on 
to  deal  with  those  inconveniences  of  intercourse  between 
the  colonies  which  we  found  the  New  England  union 
attempting  to  mitigate.  The  New  England  union  was 
to  preserve  peace  among  the  different  colonies,  carry 
on  war  against  the  Indians,  arrange  the  quotas  of  men 
each  colony  was  to  furnish  for  war,  arrange  for  the 
rights  of  citizens  of  one  colony  visiting  another  colony, 
adopt  a  general  policy  of  dealing  with  the  Indians,  and 
provide  for  the  return  of  servants  and  persons  accused 
of  crime  escaping  into  another  colony.  Penn  added  to 
these  subjects  of  general  government  the  return  of  ab- 
sconding debtors  and  the  regulation  of  commerce. 

The  regulation  of  commerce  is  a  most  interesting  ad- 
dition and  development  As  commerce  increased  in  the 
course  of  years  its  regulation  became  of  more  and  more 
importance,  and  in  the  end  the  necessity  for  this  regu- 
lation was  one  of  the  most  important  causes  of  federal- 
ism. In  fact,  the  convention  which  framed  the  National 
Constitution  in  1787  was  originally  called  merely  for  the 
purpose  of  regulating  the  commerce  between  the  States 
that  bordered  on  Chesapeake  Bay ;  and  no  more  im- 
portant clause  was  placed  in  the  national  document  than 
that  which  gives  Congress  power  to  "  regulate  commerce 
15  «S 


Evolution  of  the  Constitution 

with  foreign  nations  and  among  the  several  states,  and 
with  the  Indian  tribes." 

The  last  clause  of  Penn's  plan  provided  that  in  time 
of  war  the  king's  high  commissioner  should  be  "  General 
or  Chief  Commander"  of  the  forces  raised  by  the  colo- 
nies. This  sort  of  military  power  was,  as  we  have  seen 
in  a  previous  chapter,  often  given  to  the  governor  in 
the  constitutions  of  1 776,  and  he  was  called  commander- 
in-chief  or  captain-general  until,  in  the  National  Consti- 
tution, the  term  commander-in-chief  was  settled  upon 
for  the  President 

Penn's  plan  of  a  congress  of  deputies,  each  colony 
sending  an  equal  number,  with  a  presiding  officer,  or 
executive  head,  appointed  by  the  king,  remained  for  a 
long  time  the  model  for  all  plans  of  union  of  the  colo- 
nies. Names  and  details  were  varied,  but  the  general 
outline  remained. 

It  may  cdso  be  observed  at  this  point  that  the  legis- 
lative body  created  by  the  New  England  plan  of  union 
had  the  sole  power  of  declaring  war  and  peace,  and  the 
other  numerous  temporary  unions  which  were  made 
from  time  to  time  were  usually  for  the  purpose  of  regu- 
lating war  or  treaties  with  the  Indians.  This  may  have 
gradually  accustomed  the  colonists  to  the  idea  that  the 
war  and  peace  power  of  a  government  belonged  to  the 
representative  and  legislative  department,  and  not  to 
the  executive,  so  that,  when  the  National  Constitution 
was  framed,  the  war  power,  instead  of  being  given  to  the 
President  in  imitation  of  the  war  power  of  the  British 
king,  was  given  to  Congress. 

For  some  years  after  Penn's  plan  appeared  there  was 
326 


Evolution  of  Federalism 

a  discussion  of  the  subject  of  union,  which  shows  that 
the  idea  was  not  only  developing,  but  was  arousing  op- 
position in  some  quarters,  or,  in  other  words,  that  the 
people  were  becoming  more  and  more  trained  to  its 
various  aspects.  About  the  time  of  Penn's  plan  the 
Lords  of  Trade  discussed  another  one,  which  they  had 
received  from  the  governor  and  assembly  of  Massa- 
chusetts, accompanied  by  several  memorials  from. per- 
sons in  neighboring  colonies.  It  was  suggested,  appar- 
ently, that  New  York,  New  Jersey,  and  all  the  New 
England  colonies  be  united  together  under  one  gover- 
nor, who  should  be  the  person  that  was  appointed  gov- 
ernor of  Massachusetts,  and  that  he  should  also  be  the 
governor  of  New  York  and  New  Hampshire  and  general 
of  the  forces  raised  by  the  colonies  that  were  to  unite. 

Connecticut  objected  to  this  arrangement,  because 
such  a  military  governor  would  have  power  to  march 
her  people  beyond  the  boundaries  of  their  province 
without  that  province's  consent  This  objection  was  a 
very  common  one  in  colonial  times,  and  the  feeling  was 
strong  that  the  people  of  a  province  should  never,  ex- 
cept by  their  own  consent,  be  marched  beyond  its 
boundaries.  New  Hampshire  also  objected,  because  it 
would  be  an  increased  charge  upon  her  without  any 
compensating  advantage ;  and  New  York  objected,  be- 
cause most  of  the  New  England  colonies  had  enough 
to  do  to  defend  their  own  frontiers  and  could  not  assist 
Massachusetts  or  New  York.  There  seems  also  to  have 
been  an  apprehension  that  the  plan  might  give  Boston 
too  much  advantage  in  trade. 

The  question  was  debated  back  and  forth  with  con- 

227 


Evolution  of  the  Constitution 

siderable  detail,  and  the  Lords  of  Trade,  being  of  the 
opinion  that  any  union,  except  under  such  a  military 
head,  was  impracticable,  recommended  that  a  captain- 
general  be  appointed  as  requested,  and  that  his  chief 
residence  during  the  war  be  in  New  York,  with  liberty 
to  remove  to  Boston  from  time  to  time  as  occasion 
should  require.  Richard,  Earl  of  Bellomont,  was  ap- 
pointed to  this  office,  and  for  a  time  this  union  was  in 
actual  operation. 

Two  years  afterwards  Charles  D'Avenant  suggested 
a  scheme  of  a  Council  of  Trade,  to  which  council  each 
colony  should  regularly  report  its  condition,  and  at  the 
same  time  he  approved  of  Penn's  plan.  Both  his  plan 
and  Penn's  were  criticised  in  a  pamphlet  written  by  a 
Virginian,  who  objected  to  the  provisions  for  equal  rep- 
resentation from  each  colony.  As  the  colonies  differed 
vastly  in  numbers  and  extent,  this  was,  he  said,  unfair, 
and  he  proposed  that  Virginia  should  have  four  repre- 
sentatives, Maryland  three,  New  York  two,  Boston  three, 
and  so  on.  No  one,  he  said,  would  deny  Virginia's  right 
to  more  representatives  than  the  others,  because  she  was 
the  eldest  and  the  most  profitable  of  all  the  English 
plantations  in  America. 

He  also  objected  to  the  deputies  meeting  always  at 
New  York,  and  offered  an  arrangement  by  which  they 
should  meet  in  turn  in  different  parts  of  the  country,  so 
that  they  might  become  better  acquainted  with  the  con- 
ditions and  requirements  of  each  part  New  York,  he 
said,  should  not  have  an  opportunity  of  drawing  so 
much  money  to  it  every  year  from  all  the  other  colo- 
nies.    He  commented  somewhat  on  what  D'Avenant 

228 


Evolution  of  Federalism 

had  said  of  Penn's  plan  being  an  imitation  of  the  Greek 
Amphictyonic  Council.  He  urged  that  the  colonies 
which  still  remained  proprietary  or  had  charters  be 
taken  under  the  direct  rule  of  the  king  by  act  of  Par- 
liament This  uniformity  in  the  government  of  each 
would  assist  in  a  uniform  plan  for  the  government  of 
all,  which,  he  said,  was  becoming  more  and  more  neces- 
sary to  resist  the  designs  of  the  French  and  Spanish 
on  the  North  American  continent 

In  1 70 1  Robert  Livingston,  of  New  York,  suggested 
a  plan  which  is  of  interest,  because  it  is  based  on  the 
sectional  principle  and  gives  up  any  hope  of  uniting  all 
the  colonies.  He  proposed  three  distin-ct  governments, 
—one  composed  of  Virginia,  Maryland,  and  North  and 
South  Carolina ;  a  second,  of  part  of  Connecticut,  New 
York,  the  Jerseys,  Pennsylvania,  and  Delaware  ;  and  a 
third,  of  Massachusetts,  New  Hampshire,  Rhode  Island, 
and  the  rest  of  Connecticut  He  divided  up  the  colo- 
nies, it  will  be  observed,  very  nearly  on  the  division, 
which  has  always  existed,  of  New  England,  Middle,  and 
Southern  ;  and  his  plan  shows  clearly  that  sectionalism 
was  always  an  important  element  in  the  growth  or  in 
checking  the  growth  of  federalism. 

In  1 72 1  the  Earl  of  Stair  prepared  a  very  compre- 
hensive scheme  of  twenty-six  articles,  which  were  to  in- 
clude the  West  Indies  as  well  as  all  the  English  colonies 
on  the  continent  It  followed  the  regulation  form, 
which  had  been  started  by  Penn,  of  a  legislative  body 
composed  of  two  delegates  from  each  province,  presided 
over  by  a  captain-general,  who  was  to  reside  in  the 
middlemost  province.     The  right  to  local  self-govem- 

229 


Evolution  of  the  Constitution 

ment  in  each  colony  was  guaranteed,  as  it  usually  was 
in  these  plans,  showing  how  persistent  was  this  first  and 
essential  element  of  federalism.  The  method  of  invest- 
ing the  captain-general  with  his  authority  was  left  to  be 
settled  afterwards,  and  the  plan  suggested  that  he  might 
be  either  nominated,  elected,  chosen,  or  appointed, 
which  gave  the  colonists  a  possible  chance  for  a  voice 
in  his  selection,  and  was  more  liberal  than  most  of  the 
plans. 

The  plan  was  indeed  not  only  liberal,  but  elaborate, 
and  showed  a  decided  tendency  to  develop  the  details 
of  a  general  government.  Salaries  were  provided  for 
every  one,  a  treasury  department  was  outlined,  and  a 
general  post-office  system.  There  were  also  to  be  a 
secretary  of  state  and  a  small  navy  of  eight  or  ten  ves- 
sels. It  was  a  decided  development  towards  a  national 
government 

The  Lords  of  Trade  seem  to  have  recommended  the 
general  features  of  the  plan  to  the  king,  and  they  added 
that  the  utility  of  a  union  was  so  evident  that  it  was  un- 
necessary to  argue  the  question.  This  seems  to  have 
been  the  general  feeling  of  the  time.  The  absurdities 
and  inconveniences  of  intercourse  among  the  colonies 
were  obvious  to  every  one. 

In  1722,  a  plan  by  Daniel  Coxe,  of  New  Jersey,  sug- 
gests, for  the  first  time,  that  the  captain-general,  or  head 
of  the  union,  should  be  given  the  veto  power,  and  argues 
for  the  importance  of  a  union  from  the  disasters  which 
befell  the  ancient  Britons  for  the  want  of  one. 

At  the  same  time  there  was  one  important  person, 
and  probably  others,  long-headed  enough  to  see  that 

230 


Evolution  of  Federalism 

from  the  point  of  view  of  the  British  Crown  there  might 
be  a  disadvantage  in  union.  Sir  William  Keith,  who 
had  been  a  very  successful  governor  of  Pennsylvania, 
thought  that  the  want  of  harmony  among  the  colonies 
and  their  jealousies  in  trade  should  be  encouraged 
rather  than  mitigated.  "The  wisdom,"  he  said,  "of 
the  Crown  of  Great  Britain  therefore  by  keeping  its  colo- 
nies in  such  situation  is  very  much  to  be  applauded  ; 
for  while  they  continue  so  it  is  morally  impossible  that 
any  dangerous  union  can  be  formed  among  them."  It 
was  not  good  policy,  he  thought,  "  to  accustom  all  the 
able  men  in  the  colonies  to  be  well  exercised  in  arms." 

Our  next  plan  is  Frankhn's  of  1754,  and  a  very  im- 
portant one.  The  Lords  of  Trade  were  anxious  that  all 
the  colonies  should,  by  their  representatives,  meet  all 
the  Indian  tribes  at  Albany  and  make  a  general  treaty 
with  them  which  would  break  up  the  confusion  of  sepa- 
rate treaties  and  policies  and  be  a  precedent  for  general 
action  in  the  future.  Massachusetts  took  up  the  sug- 
gestion with  much  earnestness,  and  urged  that  at  the 
same  meeting  there  should  be  an  attempt  to  confederate 
all  the  provinces.  Several  plans  of  union  were  offered, 
and  Franklin's  was  adopted.  It  had  been  more  ma- 
turely considered  than  the  others  ;  for  before  the  meet- 
ing he  had  published  his  thoughts  on  the  question  in  his 
newspaper  in  Philadelphia,  and  from  these  he  elaborated 
the  plan  he  presented  to  the  meeting. 

It  contained  most  of  the  developments  we  have  al- 
ready noticed  ;  self-government  was  guaranteed  to  each 
colony,  salaries  were  provided,  and  a  treasury  depart- 
ment ;   and   then  we  find   some  interesting   advances. 

231 


Evolution  of  the  Constitution 

The  president-general  is  distinctly  assigned  the  duty  of 
carrying  into  execution  the  acts  of  the  council, — a  de- 
tail of  executive  power  which  had  not  been  formally 
expressed  in  the  other  plans,  and  which  reminds  us  of 
that  expression  which,  starting  in  one  of  the  constitu- 
tions of  Pennsylvania,  passed  through  nearly  all  the 
documents  until  we  find  it  in  the  National  Constitution 
in  the  slightly  altered  form,  "  he  shall  take  care  that  the 
laws  be  faithfully  executed." 

The  president-general  is  to  appoint  military  officers 
with  the  consent  of  the  grand  council,  and  civil  officers 
are  to  be  appointed  by  the  grand  council  with  the  con- 
sent of  the  president-general,  which  was  a  more  detailed 
description  of  the  appointing  power  than  had  appeared 
before.  The  term  president-general  is  worth  observing. 
It  is  evidently  an  attempt  to  give  a  name  which  should 
be  short  and  also  express  the  general  opinion  that  the 
head  of  the  union  must  be  at  the  same  time  both  a  civil 
and  a  military  officer.  The  same  idea  was  afterwards 
carried  out  in  the  National  Constitution  by  calling  the 
head  of  the  government  President  and  declaring  that  he 
should  be  commander-in-chief  of  the  army  and  navy. 

But  the  most  striking  advance  in  Franklin's  plan  is 
that  the  grand  council,  or  representative  body  of  all  the 
colonies,  is  given  the  power  "  to  lay  and  levy  general 
duties,  imposts,  or  taxes"  on  each  colony  according  to 
its  circumstances  and  ability.  Previous  plans  had  been 
very  careful  to  leave  to  each  colony  the  manner  in  which 
money  was  to  be  raised  from  it,  and  this  was  part  of  the 
guarantee  of  its  local  rights.  The  union  might  fix  a 
colony's  quota,  but  the  colony  was  to  lay  the  taxes  that 

232 


Evolution  of  Federalism 

raised  it,  and  this  showed  that  the  plans  of  union  were 
as  yet  nothing  but  leagues  or  alliances  of  sovereignties. 
But  here  in  Franklin's  plan  we  find  the  provinces  for  the 
first  time  surrendering  an  important  part  of  their  sover- 
eignty and  allowing  the  general  government  to  act  di- 
rectly on  their  people  instead  of  through  sovereignties, 
and  this  was  evidently  a  strong  move  in  the  direction  of 
federalism. 

There  was  also  another  new  provision  in  the  plan, 
providing  that  no  money  should  issue  except  "  by  joint 
orders  of  the  president-general  and  grand  council,  ex- 
cept where  sums  had  been  appropriated  to  particular 
purposes  and  the  president-general  is  previously  em- 
powered by  an  act  to  draw  for  such  sums."  This  was  a 
natural  and  necessary  arrangement  appearing  for  the 
first  time,  and  afterwards  in  the  National  Constitution 
the  same  point  was  covered  by  the  simple  expression, 
"  No  money  shall  be  drawn  from  the  treasury  but  in 
consequence  of  appropriations  made  by  law." 

In  the  next  Sentence  of  his  plan  we  find  Franklin 
providing  that  "  the  general  accounts  shall  be  yearly 
settled  and  reported  to  the  several  assemblies,"  and  in 
the  National  Constitution  we  find,  "  a  regular  statement 
and  account  of  the  receipts  and  the  expenditures  of  all 
public  money  shall  be  published  from  time  to  time." 

The  general  outline  of  Franklin's  plan  was,  of  course, 
the  regulation  one  of  a  body  of  deputies  sent  by  the 
colonies  and  called  the  grand  council,  and  a  president- 
general  appointed  by  the  Crown,  who  was  not  merely 
to  preside  over  the  grand  council,  but  is  described  as 
administering   the   general    government      The   grand 

233 


Evolution  of  the  Constitution 

council  were  to  choose  their  own  speaker,  and  could 
not  be  dissolved  nor  continued  sitting  longer  than  six 
weeks  at  one  time  without  their  own  consent  or  the 
special  command  of  the  Crown.  The  president-general 
is  impliedly  given  the  veto  power  in  a  passage  which 
requires  his  assent  to  all  acts  of  the  grand  council,  and 
there  is  another  veto  power  in  the  king,  for  the  laws  must 
be  transmitted  to  him,  and,  if  not  disapproved  within 
three  years  after  presentation,  are  to  remain  in  force. 

It  was,  in  fact,  a  complete  form  of  government  It  is 
important  also  to  notice  that  the  representation  of  the 
colonies  in  the  grand  council  was  not  equal.  Massa- 
chusetts was  given  seven  representatives,  Virginia  seven, 
Pennsylvania  six,  and  the  others  lesser  numbers.  After 
three  years  the  representation  from  each  colony  was  to 
be  in  proportion  to  the  money  raised  from  it  each  year, 
provided  that  the  number  chosen  by  any  one  province 
should  not  be  more  than  seven  nor  less  than  two.  This 
question  of  the  representation  of  each  colony  in  the  union 
gave  much  trouble,  and  was  settled  in  different  ways.  In 
the  previous  plans  we  find  an  equal  representation,  with 
occasional  criticisms  that  it  should  be  unequal,  but  here 
we  find  a  plan  adopted  by  representatives  of  all  the 
colonies  making  the  representation  decidedly  unequal. 
This  shows  conclusively  that  the  colonies  were  working 
out  the  problem  of  representation  in  their  own  way,  and 
that  when  in  the  Articles  of  Confederation  of  the  Revo- 
lution the  representation  was  made  equal,  by  giving 
each  State  one  vote,  it  was  not,  as  Mr,  Campbell  sup- 
poses, an  imitation  of  the  States-General  of  the  Nether- 
lands. 

234 


Evolution  of  Federalism 

Among  the  plans  which  seem  to  have  been  submitted 
at  the  same  time  as  Franklin's  was  one  which  should  be 
mentioned  because  it  is  based  on  sectionalism.  It  is 
supposed  to  have  been  prepared  by  Richard  Peters,  who 
was  secretary  of  the  province  of  Pennsylvania  and  a 
delegate  to  the  Albany  convention.  It  divides  the 
colonies  into  four  different  governments, — one  composed 
of  the  extreme  southern  colonies,  Georgia  and  the  two 
Carolinas  ;  another  of  Virginia,  Maryland,  and  Pennsyl- 
vania ;  a  third  of  the  Jerseys  and  New  York,  and  the 
fourth  of  the  New  England  colonies.  It  was  almost 
exclusively  a  military  suggestion,  and  contains  nothing 
worthy  of  comment. 

Franklin's  plan  adopted  at  Albany  was  referred  by 
the  Massachusetts  assembly  to  a  committee  that  prepared 
a  substitute  based  on  sectionalism.  But  both  this  and 
Franklin's  plan  were  rejected  by  the  Massachusetts  as- 
sembly and  a  new  committee  appointed,  which  prepared 
a  plan  usually  known  as  Hutchinson's.  It  was  for  the 
most  part  a  mere  paraphrase  of  Franklin's,  except  that 
it  provides  that  no  member  of  the  council  shall  be  chosen 
or  appointed  to  any  civil  or  military  office,  which  shows 
that  the  desire  to  keep  the  departments  of  government 
more  distinct  was  growing,  and  it  also  gave  the  president 
and  council  power  to  appoint  officers  for  collecting  from 
the  people  the  duties  levied  by  the  council.  This  last 
provision  was  another  advance  towards  federalism. 

Considerable  jealousy  was  felt  against  the  power  given 
to  the  general  government  in  Franklin's  union,  and 
Hutchinson's  plan  provided  that  the  power  of  the  union 
should  continue  for  only  six  years,  unless  at  the  end  of 

235 


Evolution  of  the  Constitution 

that  time  there  should  be  war  between  Great  Britain 
and  France,  in  which  case  the  power  should  continue 
until  the  end  of  the  war. 

The  other  colonies  also  rejected  Franklin's  plan.  They 
seemed  to  be  jealous  of  it,  and  thought  it  created  too 
strong  a  government.  It  was  also  rejected  in  England 
by  the  Lords  of  Trade,  because  it  was  too  democratic. 
The  Lords  of  Trade  then  offered  a  plan  of  their  own, 
which  was  merely  military  and  never  carried  into  effect. 

Some  years  afterwards,  Dr.  Samuel  Johnson,  president 
of  King's  College,  in  New  York,  proposed  a  plan  which 
is  noteworthy  as  coming  from  a  learned  source  and  also 
from  a  person  who  was  evidently  a  high  Tory.  To  his 
mind  the  colonies  seemed  to  be  becoming  too  republi- 
can. They  should  be  brought  more  into  conformity 
with  the  government  of  the  mother-country,  and  to  this 
end  colonies  Hke  Rhode  Island  and  Connecticut,  which 
had  rather  liberal  governments,  should  have  their  char- 
ters abolished.  The  proprietary  governments  should 
also  be  abolished  and  all  brought  under  the  direct  rule 
of  the  king.  This  being  done,  a  union  might  be  formed 
on  the  general  plan  of  a  captain-general  or  head  of  some 
sort,  with  a  council  composed  of  two  representatives 
from  each  province.  This,  he  said,  would  be  like  the 
Amphictyonic  Council  of  the  ancient  states  of  Greece. 
It  would  consider  the  common  affairs  of  war  and  trade, 
and  might  also  consider  whether  the  laws  passed  in  the 
different  colonies  should  be  confirmed  or  annulled. 
This  last  was  certainly  a  peculiar  suggestion. 

But  almost  every  plan  of  union  that  appeared  added 
some  development,  and  so  we  find  even  in  this  one  the 

236 


Evolution  of  Federalism 

first  suggestion  that  the  union  should  regulate  the  value 
of  money  so  that  it  should  be  uniform  in  all  the  prov- 
inces,— a  provision  which  afterwards  appeared  in  nearly 
all  the  plans  until  it  took  its  place  in  the  Constitution. 

During  the  agitations  over  the  stamp  act  and  other 
parliamentary  measures  which  preceded  the  Revolution 
there  were  congresses  and  meetings  of  delegates  from 
all  the  colonies,  but  no  formal  plan  of  union  was  pre- 
pared. The  congresses  and  meetings,  however,  were  in 
themselves  acts  of  union,  and  could  hardly  have  been 
assembled  so  easily  without  the  previous  experience  and 
training  of  over  a  hundred  years  in  unions  for  Indian 
wars  and  treaties  and  to  resist  the  French.  The  French 
and  Indian  wars,  which  were  just  completed  before  the 
stamp-act  agitation  began,  had  shown  more  plainly  than 
ever  the  need  of  union  and  at  the  same  time  strengthened 
the  feeling  for  it  by  giving  the  people  for  the  first  time 
a  common  bond  of  sympathy  against  a  common  enemy. 
There  is  nothing  so  effective  as  a  foreign  enemy  and 
invader  for  driving  a  people  into  union,  and  there  has 
been  an  instance  of  it  in  our  own  time  in  the  unifica- 
tion of  Germany  after  the  Franco-Prussian  War. 

In  the  case  of  the  colonies  the  unifying  tendency  of 
the  French  enemy  was  followed  immediately  by  the 
appearance  of  another  enemy, — the  British  Parliament 
and  king, — and  under  the  pressure  of  this  new  invader 
delegates  from  all  the  colonies  met  together  naturally 
and  easily.  They  drew  up  no  plan  or  rules  of  union, 
for  the  cause  of  their  union  had  become  too  plain  for 
rules.  But  their  debates  assisted  the  development 
towards  federalism.     They  discussed  for  the  first  time 

237 


Evolution  of  the  Constitution 

the  rights  and  privileges  of  the  colonies  as  a  whole, 
reviewed  their  history,  and  generalized  their  liberties. 

The  unity  of  feeling  among  them  was  strongly  shown 
in  the  non-importation  agreement,  under  which  they  vol- 
untarily deprived  themselves  of  foreign  luxuries  and  set 
to  work  to  increase  their  own  arts  and  manufactures  as 
well  as  their  flocks  and  herds.  They  agreed  upon  the 
most  rigid  economy  among  themselves.  On  the  death  of 
a  relation,  "none  of  us,"  says  the  agreement,  "will  go 
into  any  further  mourning  dress  than  a  black  crape  or 
ribbon  on  the  arm  or  hat  for  gentlemen  and  a  black 
ribbon  and  necklace  for  ladies,  and  we  will  discontinue 
the  giving  of  gloves  and  scarfs  at  funerals."  When  sov- 
ereign states  meet  together  and  are  willing  to  give  up 
conveniences,  privileges,  or  rights  for  the  benefit  of  all, 
they  have  taken  the  first  step  beyond  a  mere  league 
and  in  the  direction  of  federalism. 

The  Continental  Congress  assembled  in  1774,  without 
any  definite  form  of  government,  and  went  on  from  day 
to  day  and  year  to  year  conducting  a  war,  organizing 
an  army,  and  raising  money  by  tacit  understanding, 
with  no  written  instrument,  charter,  or  constitution  to 
guide  it  Three  plans  for  a  general  government  were 
suggested  and  debated  by  its  members  from  time  to 
time ;  but  four  years  passed  before  any  one  of  them 
was  adopted,  and  in  that  time  the  Congress  was  sup- 
ported in  its  authority  and  its  important  measures  by 
nothing  more  than  general  opinion. 

The  three  plans  of  government  that  were  debated  by 
the  Congress  were  Galloway's  Plan  of  1 774,  Franklin's 
Plan  of  1775,  and  the  Articles  of  Confederation,  which 

238 


Evolution  of  Federalism 

were  prepared  in  l^^(>,  but  not  finally  adopted  and  ap- 
proved by  Congress  until  i//^* 

Galloway's  plan  was  avowedly  intended  to  prevent 
independence  and  unite  the  colonies  among  themselves 
and  with  the  mother-country  in  a  way  that  should  pre- 
serve their  liberties.  The  greater  part  of  it  is  a  mere 
copy  of  Franklin's  plan  of  1754.  The  local  rights  of 
each  colony  are  first  of  all  guaranteed,  and  there  were 
to  be  a  president-general  appointed  by  the  Crown,  and 
a  grand  council  elected  by  the  colonies  every  three 
years,  each  colony  to  have  representation  in  proportion 
to  its  importance.  The  president  was  to  have  the  veto 
power  and  execute  the  laws,  and  the  grand  council  was 
to  have  all  the  rights  and  privileges  of  the  House  of 
Commons  of  Great  Britain.  The  legislative  power  given 
to  the  grand  council  was  very  broad  and  vague,  and 
might  have  meant  almost  anything.  The  council  were  to 
"  exercise  all  the  legislative  rights,  powers,  and  authori- 
ties necessary  for  regulating  and  administering  all  the 
general  police  and  affairs  of  the  colonies,  in  which 
Great  Britain  and  the  colonies,  or  any  of  them,  the 
colonies  in  general,  or  more  than  one  colony,  are  in 
any  manner  concerned,  as  well  civil  and  criminal  as 
commercial." 

This  was  certainly  an  enormous  stride  towards  federal- 
ism, and  would  have  given  the  grand  council  far  more 
power  than  is  now  possessed  by  the  Congress  of  the 
United  States. 

But  besides  this  the  grand  council  was  to  be  a  branch 
of  the  British  legislature,  and  in  all  general  colonial 
matters  the  two  were  to  be  a  check  on  each  other. 

239 


Evolution  of  the  Constitution 

Either  could  originate  colonial  legislation,  but  no  act 
was  to  be  valid  without  the  consent  of  both,  except 
money-bills  for  aid  to  the  Crown  in  war,  which  might 
become  valid  when  approved  by  the  grand  council  and 
the  president  without  the  assent  of  the  British  Par- 
liament. 

This  plan  seems  to  have  at  one  time  met  with  the 
approval  of  a  majority  of  the  Congress.  But  afterwards, 
when  the  feeling  against  England  had  increased,  the 
plan  and  all  debate  on  it  were  ordered  to  be  stricken 
from  the  records. 

Franklin's  plan  of  the  following  year  also  contem- 
plated a  reconciliation  with  England,  but  only  as  a 
future  contingency,  and  there  was  no  suggestion  of  di- 
rect connection  with  the  British  Parliament.  It  was  a 
plan  for  an  independent  government,  which  should  be 
perpetually  independent  unless  reconciliation  with  the 
mother-country  were  effected.  It  was  not  so  strong  in  its 
federalism  as  Galloway's  plan  ;  yet  it  was  a  considerable 
advance  on  plans  previous  to  his,  and  showed  how  the 
idea  was  progressing. 

The  description  of  the  rights  of  the  States,  the  sub- 
jects over  which  they  should  retain  jurisdiction,  and  the 
matters  which  should  be  under  the  control  of  the  gen- 
eral government  is  in  Franklin's  plan  very  clear  and 
somewhat  like  the  modern  way  of  expressing  it  The 
plan,  however,  is  intended  to  be  suggestive  in  its  form, 
and  consists  principally  of  general  heads  to  be  worked 
out  afterwards  in  detail.  Of  this  sort  is  the  third  arti- 
cle, which  says  that  each  colony  shall  "  retain  as  much 
as  it  may  think  fit  of  its  own  present  laws,  customs, 

240 


Evolution  of  Federalism 

rights,  privileges,  and  peculiar  jurisdiction  within  its  own 
limits  and  may  amend  its  own  constitution  as  shall  seem 
best"  The  power  and  duty  of  Congress  are  clearly  de- 
fined, and  are  to  extend  to  war  and  peace,  sending  and 
receiving  ambassadors,  entering  into  alliance,  settling 
boundary  disputes  and  all  other  disputes  between  the 
colonies  ;  and  Congress  is  given  power  over  all  other 
matters  which  are  necessary  to  the  general  welfare  and 
cannot  be  well  controlled  by  the  assemblies  of  the  in- 
dividual States, — viz.,  regulations  for  general  commerce, 
general  currency,  the  post-office,  and  the  army. 

This  was  a  large  delegation  of  power.  The  assign- 
ing of  the  right  of  declaring  war  and  peace  to  Congress 
shows  how  persistent  was  the  tendency  among  our 
people  to  give  this  power  to  the  legislative  department 
instead  of  to  the  executive.  The  sending  and  receiving 
of  ambassadors  and  the  entering  into  alliances  were,  of 
course,  new,  because  the  people  were  now  acting  inde- 
pendently of  the  mother-country,  and  it  was  necessary 
that  their  government  should  have  this  attribute  of 
sovereignty.  The  settlement  of  boundary  disputes  be- 
tween colonies  arose  out  of  the  circumstances  of  the 
time.  There  had  been  great  difficulty  over  boundary 
questions  between  New  Hampshire  and  Vermont,  New 
York  and  Vermont,  Pennsylvania  and  Connecticut,  Penn- 
sylvania and  Maryland,  and  Pennsylvania  and  Virginia. 
Several  of  these  disputes,  notably  those  between  Penn- 
sylvania and  Connecticut  and  Pennsylvania  and  Mary- 
land, had  already  resulted  in  bloodshed  and  petty  civil 
war.  It  had  been  found  impossible  to  settle  them  except 
after  long  litigation  before  the  Privy  Council  in  England, 

i6  241 


Evolution  of  the  Constitution 

which,  in  the  case  of  the  dispute  between  Pennsylvania 
and  Maryland,  lasted  for  over  seventy  years. 

The  settling  of  all  other  differences  between  colonies 
was  also  an  item  of  power  that  had  never  appeared  in 
any  other  plan.  But  the  power  to  regulate  the  cur- 
rency, the  establishment  of  a  post-office,  and  the  regu- 
lation of  commerce  and  of  the  army  had  appeared  in 
other  plans. 

The  power  to  appoint  both  civil  and  military  officers 
was  given  by  Franklin  to  Congress,  and  not  to  the  ex- 
ecutive. In  fact,  Congress  was  the  principal  power. 
The  executive  was  very  weak  and  inefficient,  and  was 
to  consist  merely  of  an  executive  committee  or  council 
composed  of  twelve  members  of  Congress,  who  during 
the  recess  of  the  Congress  should  manage  the  general 
continental  business,  receive  applications  from  foreign 
countries,  prepare  matters  for  the  consideration  of  the 
next  meeting  of  Congress,  and  fill  such  offices  as  during 
the  recess  should  become  vacant.  An  executive  of  this 
sort,  composed  of  a  number  of  persons,  was  a  favorite 
notion  of  Franklin's,  and  was  adopted  in  the  constitution 
of  Pennsylvania  of  1776,  largely,  no  doubt,  through  his 
influence.  It  was  also  adopted  in  the  Articles  of  Con- 
federation, principally  because  the  people  were  very 
jealous  of  executive  power  and  feared  leaving  it  in  the 
hands  of  one  man. 

The  year  after  Franklin's  plan  was  presented  the 
Articles  of  Confederation  were  prepared.  This  was  in 
the  spring  of  1776,  when  the  movement  towards  the 
declaration  of  independence  was  in  progress,  and  it 
seemed    absolutely   necessary   to    have   some   definite 

242 


Evolution  of  Federalism 

form  of  government  for  the  united  colonies.  It  was 
therefore  the  most  serious  and  earnest  attempt  that 
had  ever  been  made  to  frame  a  union  and  general 
government. 

The  attempts  at  union  in  the  previous  hundred  years 
had  been  no  stronger  than  desires  for  greater  con- 
venience in  managing  general  affairs.  If  they  failed, 
nothing  much  was  lost  The  colonies  were  no  worse 
off  than  before,  and  still  had  the  mother-country  to  rely 
on.  But  now,  if  independence  was  declared,  the  colo- 
nies would  be  adrift  in  the  world,  and  must  take  their 
place  as  a  regularly  organized  nation  or  perish.  It 
would  be  extremely  difficult  to  conduct  the  war  and 
afterwards  stand  before  the  world  as  an  independent 
people  unless  they  had  a  regular  form  of  government, 
which  would  enable  them  to  send  and  receive  ambassa- 
dors, make  alliances  with  foreign  countries,  and  organize 
their  own  forces  of  men,  money,  and  opinion  in  an 
efficient  manner. 

At  the  same  time  that  the  Declaration  of  Indepen- 
dence was  being  debated  and  shaped,  the  Continentcil 
Congress  was  considering  with  equal  energy  the  Articles 
of  Confederation,  which  were  to  form  the  most  complete 
and  advanced  general  government  that  had  yet  ap- 
peared. The  subject  was  referred  to  a  committee  on 
June  12,  1 776,*  and  the  committee  reported  July  12, 
soon  after  the  Declaration  of  Independence  was  adopted. 
The  articles  of  the  new  government  were  exhaustively 
debated  and  amended  from  time  to  time  for  the  next 
two  years,  and  were  signed  by  the  members  of  Con- 
gress July  9,  1778.     After  that  three  more  years  passed 

243 


Evolution  of  the  Constitution 

away  while  they  were  discussed  by  the  different  States, 
and  changes  suggested.  They  were  ratified  slowly,  and 
the  adoption  of  them  was  not  complete  until  Maryland 
gave  her  consent,  March  i,  1781. 

The  care  which  was  required,  the  long  years  of  de- 
bate, the  balancing  and  compromising  of  objections  and 
conflicting  interests,  show  that  after  all  the  experience 
and  attempts  of  the  previous  hundred  years  it  was  still 
a  difficult  matter  to  frame  a  general  government  that 
should  be  more  than  a  mere  league  or  alliance.  Yet 
without  the  previous  attempts  it  could  not  have  been ' 
done  ;  for  when  we  read  over  the  completed  Articles 
of  Confederation  we  find  them  made  up  of  everything 
that  had  before  appeared  in  plans  of  union,  with  additions 
and  careful  elaborations. 

The  first  draught  of  the  Articles  that  was  submitted 
to  Congress  had  more  resemblance  to  Franklin's  plan 
of  the  year  before,  and  was  simpler  in  language,  than  the 
completed  copy  that  was  ratified  by  the  States.  The 
completed  Articles,  however,  begin  as  many  of  the  pre- 
vious plans  had  begun, — by  guaranteeing  to  each  State 
its  local  rights  and  liberties.  But  this  guarantee  is  ex- 
pressed more  completely  and  better  than  ever  before. 
Each  State  is  to  retain  its  sovereignty,  freedom,  and 
independence,  and  every  power,  jurisdiction,  and  right 
which  is  not  by  the  Articles  expressly  delegated  to  the 
United  States  in  Congress  assembled.  At  the  same 
time,  the  States  agree,  in  very  much  the  same  form  that 
they  had  formerly  agreed  in  the  plans,  to  enter  into  a 
firm  league  of  friendship  with  one  another  for  their 
common  defence  and  general  welfare. 

244 


Evolution  of  Federalism 

The  problem  which  the  New  England  union  of  1643 
and  Penn's  plan  of  1696  had  struggled  with,  that  is  to 
say  the  inconveniences  in  the  intercourse  of  the  States, 
is  dealt  with  in  greater  detail  than  formerly.  The 
people  of  each  State  are  to  have  free  ingress  and  regress 
in  all  the  others,  enjoy  the  same  privileges  and  immu- 
nities in  trade  and  commerce,  be  subject  to  the  same 
duties  and  restrictions,  and  persons  charged  with  crime 
and  fleeing  into  another  State  are  to  be  delivered  up. 
Then  appears  a  new  provision,  to  the  effect  that  full 
faith  and  credit  shall  be  g^ven  in  each  State  to  the 
records  and  judicial  proceedings  of  every  other  State, 
which  was  repeated  in  a  slightly  simplified  form  in  the 
Constitution. 

The  general  outline  of  the  legislative  department  fol- 
lows very  closely  the  old  forms.  Each  State  is  to  send 
delegates  to  a  general  legislative  body  called  the  Con- 
gress. The  question  which  had  been  so  long  discussed 
as  to  whether  the  States  should  be  represented  equally 
or  in  proportion  to  their  population  is  settled  by  a  com- 
promise. Each  State  is  to  have  delegates  in  propor- 
tion to  its  power,  but  no  State  shall  be  represented  by 
less  than  two  nor  by  more  than  seven.  This  was  in  con- 
formity with  the  suggestions  of  Franklin  and  others  in 
the  past  But  the  other  side,  who  believed  in  equal  rep- 
resentation, were  quieted  by  the  provision  that  although 
each  State  had  a  proportional  representation,  yet  all  its 
delegates  together  could  have  only  one  vote.  A  large, 
powerful  State  would,  therefore,  have  influence  by  mere 
numbers  and  speech-making  in  proportion  to  its  power, 
but  when  it  came  to  a  vote  on  any  question  its  vote 

245 


Evolution  of  the  Constitution 

would  be  no  larger  than  that  of  the  smallest  community. 
This  balancing  arrangement  was  afterwards  the  basis 
for  those  provisions  in  the  Constitution  by  which  the 
representation  in  the  House  of  Representatives  was  in 
proportion  to  population  and  in  the  Senate  by  equality 
of  States. 

Franklin's  plan  of  an  executive  composed  of  a  com- 
mittee of  members  of  Congress  was  carried  out,  and  this 
committee  was  given  the  right  to  act  in  the  recess  of 
Congress  in  very  much  the  way  Franklin  had  recom- 
mended. 

Freedom  of  speech  in  the  Congress  was  secured,  and 
the  same  paragraph  also  protected  members  from  arrest 
and  imprisonment  during  the  session.  This  was  a  new 
provision  made  necessary  by  the  greater  importance  of 
the  government  that  was  being  created.  For  the  same 
reason  the  individual  States  were  forbidden  to  send  any 
embassy  to  or  to  treat  in  any  way  with  foreign  countries. 
Persons  holding  any  office  under  the  United  States  or 
any  of  the  States  were  forbidden  to  receive  any  present, 
emolument,  or  title  from  a  foreign  state  ;  and  the  United 
States  and  the  individual  States  were  forbidden  to  grant 
any  title  of  nobility.  The  States  were  also  forbidden  to 
enter  into  treaties  or  alliances  with  one  another  without 
the  consent  of  Congress  ;  nor  could  they  lay  imposts  or 
duties  which  might  interfere  with  stipulations  and  treaties 
made  by  the  Congress  ;  nor  could  they  keep  up  any 
larger  war  establishment  than  was  deemed  necessary  by 
the  Congress  ;  nor  engage  in  war  without  the  consent  of 
Congress  unless  they  were  actually  invaded  or  had  cer- 
tain advice  of  a  contemplated  invasion  by  Indians  so 

246 


Evolution  of  Federalism 

imminent  as  not  to  admit  of  delay  ;  nor  could  they  com- 
mission vessels  of  war  or  grant  letters  of  marque  except 
after  a  declaration  of  war  by  the  Congress. 

These  provisions  were  necessarily  new,  but  the  one 
which  forbids  the  States  to  make  war  on  their  own  ac- 
count unless  actually  invaded  or  threatened  with  invasion 
by  the  Indians  is  very  like  the  provisions  for  the  same 
purpose  in  the  old  plans  of  union,  especially  the  New 
England  union  of  1643. 

Officers  of  the  army  of  and  below  the  rank  of  colonel 
were  to  be  appointed  by  the  legislature  of  the  State 
where  the  troops  were  raised,  and  officers  above  that 
rank  by  the  Congress.  The  expenses  of  war  and  gov- 
ernment were  to  be  raised  from  the  States  and  paid  into 
a  common  fund  in  very  much  the  same  manner  as  in  the 
previous  plans,  but  the  taxes  were  to  be  laid  and  levied 
by  each  State  on  its  own  people.  Some  of  the  previous 
plans,  notably  Franklin's  of  1754,  had,  as  we  have  seen, 
given  the  general  government  power  to  lay  and  levy 
these  taxes.  This  had  been  a  long  step  towards  federal- 
ism,— in  fact,  rather  too  long.  The  people  were  not 
prepared  for  it,  and  were  uncertain  about  allowing  it 
We  find  it  appearing  and  disappearing  in  the  various 
plans  until  it  is  established  in  the  Constitution. 

The  powers  given  to  the  general  government  are,  of 
course,  interesting,  but  they  are  not  so  large  nor  so 
numerous  as  we  might  expect  Some  of  them  had  be- 
come absolutely  necessary  by  the  new  circumstances  of 
independence,  such  as  the  powers  to  send  and  receive 
ambassadors,  enter  into  treaties  and  alliances,  establish 

rules  for  captures  on  land  and  water,  grant  letters  of 

247 


Evolution  of  the  Constitution 

marque,  and  establish  courts  to  punish  piracy  and  crimes 
committed  at  sea. 

The  powers  to  regulate  afifairs  with  the  Indians  and  to 
establish  a  post-office  were  of  course  given,  but  were  not 
new.  The  sole  power  of  determining  peace  and  war  is 
given  to  the  Congress,  as  it  had  in  all  previous  plans 
been  given  to  the  legislative  department  The  provision 
in  Franklin's  plan  giving  Congress  the  power  to  settle 
boundary  disputes  between  the  States  is  repeated  in  a 
more  elaborate  form.  There  is  also  the  new  and  very 
important  right  of  fixing  the  standard  of  weights  and 
measures. 

There  was  no  power  given  to  regulate  commerce, 
which  is  rather  curious,  as  it  had  been  given  in  previous 
plans.  It  might  possibly  have  been  inferred  from  the 
power  to  make  commercial  treaties.  The  general  opin- 
ion seems  to  have  been,  however,  that  it  was  purposely 
omitted.  The  New  Jersey  legislature  complained  of 
its  omission,  and  urged  Congress  to  insert  it  by  amend- 
ment ;  and  as  time  went  on  the  complaints  on  this  point 
became  numerous. 

The  few  powers  allowed  Congress  were  restricted  by 
a  clause  which  prohibited  the  exercise  of  most  of  them 
except  by  the  assent  of  nine  of  the  thirteen  States.  Of 
the  executive  power  still  greater  jealousy  was  shown, 
and  for  fear  the  presiding  officer  of  the  Congress  might 
grow  into  a  king  they  limited  his  term  of  service  to  one 
year,  after  which  he  was  to  be  ineligible  for  re-election 
for  two  years.  Even  the  committee  of  thirteen,  which 
was  to  act  as  a  sort  of  executive  in  the  recess  of  Con- 
gress, could  have  no  power  delegated  to  it  except  by 

248 


Evolution  of  Federalism 

the  votes  of  nine  States,  and  the  special  powers  that 
could  not  be  exercised  by  Congress  except  by  the  vote 
of  nine  States  could  not  be  delegated  to  the  committee. 

It  was  unquestionably  a  very  weak  government, — a 
mere  league  with  so  few  of  the  attributes  of  federalism, 
and  those  few  so  restricted,  that  it  was  not  a  federal  or 
a  national  government  in  any  true  sense  of  the  word. 
The  fashion  has  prevailed  for  a  long  time  of  attacking 
it  in  very  severe  terms,  and  even  of  questioning  the 
patriotism  of  the  men  who  framed  it  But  we  must 
remember  that  it  was  simply  a  link  in  a  long  chain  of 
evolution  which  had  been  progressing  for  over  a  hun- 
dred years,  and  continued,  as  we  shall  see,  in  the  same 
steady  course.  It  was  a  great  advance  on  all  the  plans 
that  had  preceded  it,  and,  for  purposes  of  development, 
that  was  all  that  was  required. 

The  criticisms  on  its  lack  of  federal  power  began 
almost  as  soon  as  it  appeared.  When  signed  by  the 
members  of  Congress  and  sent  to  the  States  for  ratifica- 
tion in  1778,  most  of  those  States  had  finished  their 
new  constitutions,  on  which  they  had  been  engaged  for 
several  years.  Constitution-making  was  the  order  of 
the  day ;  everybody  was  prepared  for  discussion,  and 
no  previous  plan  of  union  received  such  serious  and 
trained  consideration. 

Though  the  prevailing  sentiment  seems  to  have  been 
that  not  enough  power  was  given,  there  were  many  who 
saw  in  the  Articles  of  Confederation  a  menace  to  the  sov- 
ereignty of  the  States.  But  even  this  State-rights  party, 
while  they  wished  greater  safeguards  for  local  liberty, 
wanted  at  the  same  time  more  power  and  efficiency  in 

249 


Evolution  of  the  Constitution 

the  general  government :  so  inevitable  is  the  develop- 
ment of  a  thought  when  once  fairly  started  on  its  way. 

In  South  Carolina,  William  Henry  Drayton,  chief 
justice  of  the  State,  addressed  the  assembly  when  the 
Articles  came  before  them  for  approval.  He  was  an 
able,  accomplished  man,  and  in  the  course  of  his  speech 
he  laid  before  them  a  plan  of  union  of  his  own,  which 
has  ever  since  been  known  by  his  name.  It  was  simply 
a  redraughting  of  the  Articles  in  his  own  language,  with 
additions  and  developments.  He  wished  to  secure  the 
rights  of  the  States,  and  especially  the  Southern  inter- 
est ;  and  he  even  went  so  far  as  to  provide  that  each 
State  should  not  only  keep  up  such  military  establish- 
ment as  it  pleased,  but  should  have  a  "  naval  seminary." 
Nevertheless  he  developed  the  federal  power,  and 
strongly  urged  the  necessity  for  it 

He  gave  Congress  the  right  to  define  treason  and  its 
punishment  and  the  right  to  levy  taxes  independently  of 
the  States.  The  right  to  levy  taxes,  though  omitted  in 
the  Articles,  had  appeared,  as  we  have  seen,  in  previous 
plans,  and  was  now  again  introduced.  But  the  right  to 
define  and  punish  treason  was  new,  and  a  distinct  mark 
of  the  increase  of  federal  feeling  ;  for  treason  is  a  crime 
against  a  nation,  not  against  a  league  or  union. 

He  created  regular  executive  departments  of  war, 
navy,  and  treasury.  He  also  provided  for  a  census  to 
be  taken  every  seven  years  ;  but  it  was  to  be  taken  by 
each  State,  and  not  by  the  general  government  in  the 
manner  afterwards  adopted.  His  greatest  advance  in 
federalism,  however,  was  a  provision  to  the  effect  that 
if  a  State  failed  to  pay  its  quota  it  was  to  be  assessed 

250 


Evolution  of  Federalism 

double,  and  if  it  still  refused  it  was  to  be  subdued  and 
brought  to  terms  by  Congress  by  force  of  arms. 

This  was  the  first  method  any  one  had  formulated  for 
compelling  obedience  to  the  commands  of  the  confed- 
eracy. The  weakness  of  Congress  in  this  respect,  and 
the  mere  advisory  nature  of  all  its  acts,  had  been  the 
chief  points  of  criticism.  The  only  remedy  that  Drayton 
could  think  of  was  for  Congress  to  make  war  on  the 
offending  State.  People's  minds  still  clung  to  the  idea 
that  everything  must  be  done  through  the  States.  They 
had  not  as  yet  advanced  to  the  conception  of  a  general 
government  which  enforced  its  commands  on  the  people 
as  individuals  without  regard  to  State  lines.  They  had 
partially  developed  this  thought  by  suggesting  that  the 
government  levy  taxes  on  the  people  at  large  ;  but  it 
had  gone  no  farther. 

Drayton  was  very  liberal  in  his  grants  of  federal 
power ;  but,  at  the  same  time,  like  the  framers  of  the 
Articles,  he  cramped  and  injured  all  he  gave  by  re- 
quiring that  all  important  acts  of  the  Congress  must 
have  the  assent  of  eleven  out  of  the  thirteen  States, — an 
increase  of  two  over  the  number  required  in  the  Articles. 

For  the  next  ten  years  the  efforts  for  stronger  feder- 
alism were  continuous.  In  1780  New  York  and  the 
New  England  States  met  by  delegates  at  Hartford  and 
recommended  that  more  power  for  coercing  the  States 
be  given  to  Congress.  This  report  was  read  in  Con- 
gress, and  Pennsylvania  and  New  Jersey  supported  it 
A  committee  of  Congress  also  recommended  an  in- 
crease of  power. 

In  1782  there  was  a  movement  in  New  York  to  call 
251 


Evolution  of  the  Constitution 

a  convention  to  revise  the  Articles,  but  nothing  came  of 
it  More  nearly  successful  was  the  attempt  to  give 
Congress  the  power  to  levy  duties  on  imports, — a  sugges- 
tion for  increased  power,  which  now  took  definite  shape. 
It  was  assented  to  by  all  the  States  except  Rhode  Island, 
but  while  efforts  were  being  made  to  secure  Rhode 
Island  Virginia  withdrew  her  approval. 

The  war  with  England  was  now  over,  and  great  diffi- 
culties were  immediately  experienced  because  Congress 
had  not  been  given  the  power  to  regulate  commerce. 
Each  State  was  making  its  own  regulations,  and  the 
British  government,  seeing  its  opportunity  to  break  up 
the  union,  undertook  to  deal  with  each  State  separately, 
and  prohibited  American  ships  from  trading  with  Eng- 
lish colonies.  It  seemed  as  if  the  Revolution  had  been 
fought  in  vain.  Congress  attempted  to  gain  prohibitory 
powers  over  commerce  for  fifteen  years  by  the  assent  of 
nine  States,  but  without  success,  Washington,  Jefferson, 
and  other  leading  men  made  most  earnest  exertions, 
and  Washington,  from  his  retirement  at  Mount  Vernon, 
sent  urgent  letters  to  Congress  and  the  governors  of  all 
the  States.  But  the  government  grew  weaker  instead 
of  stronger,  and  at  the  session  of  Congress  in  1784  four 
States  were  absent,  three  withdrew  in  disgust,  and  the 
remaining  delegates  returned  home. 

It  was  at  this  time  that  Noah  Webster's  pamphlet, 
"Sketches  of  American  Policy,"  appeared.  It  urged 
with  much  force  that  the  government  act  directly  on 
the  people  at  large  instead  of  on  the  States,  and  that 
the  general  government  be  modelled  on  the  forms  of 
the  State  governments. 

252 


Evolution  of  Federalism 

These  two  suggestions,  taken  together,  were  the  most 
important  and  far-reaching  that  had  thus  far  been  made 
by  any  one  man.  The  conception  of  the  general  gov- 
ernment at  that  time,  as  it  had  developed  out  of  the  old 
plans  of  union,  was  that  it  should  consist  of  a  simple 
representative  body  which  should  transact  all  the  busi- 
ness of  the  union,  executive  as  well  as  legislative.  There 
was  no  separate  executive  department, — for  the  execu- 
tive committee  was  merely  a  committee  of  Congress  and 
its  powers  were  very  much  restricted, — and  there  was 
no  judicial  department  unless  Congress  chose  to  create 
one,  and  even  if  created  by  Congress  its  jurisdiction 
would  be  confined  to  cases  of  piracy,  capture,  and  felo- 
nies committed  on  the  high  seas. 

Webster  suggested  that  all  this  primitive  arrangement 
be  abolished,  and  that  the  double-branch  legislature,  with 
the  distinct  executive  and  judicial  departments  that  pre- 
vailed in  the  State  governments,  be  adopted.  It  was  a 
fertile  suggestion,  and  seems  to  have  settled  the  question, 
for  when  the  convention  met  in  1787  the  minds  of  its 
members  were  made  up  on  this  point  Thus  the  two 
lines  of  development  of  which  we  have  been  treating 
joined  their  forces  in  the  convention  that  framed  the 
Constitution, — the  line  that  had  been  developing  the 
administrative  parts  of  government  from  Sir  Walter 
Raleigh's  charter  of  1584  through  the  charters  and  con- 
stitutions of  colonial  times  and  the  constitutions  of  1 776, 
and  the  line  that  had  been  developing  federalism  from 
the  New  England  union  of  1643. 

Webster  seems  to  have  been  the  first  person  who 
wrote  of  the  importance  of  joining  these  two  lines  of 

253 


Evolution  of  the  Constitution 

development,  and  he  has  not  yet  received  full  credit 
for  it  His  other  suggestion  was  of  equal  if  not  greater 
importance,  namely,  that  the  government  should  act 
directly  on  individuals  instead  of  on  the  States,  and, 
although  there  seems  to  be  no  passage  in  the  pamphlet 
which  announces  this  doctrine  in  so  many  words,  there 
are  several  which  imply  it.  He  wrote  to  Madison  com- 
plaining that  he  had  not  received  the  full  reward  of 
recognition,  and  Madison  replied  that  his  services  were 
well  known  and  recognized.  His  pamphlet  has  now 
become  very  scarce  and  should  be  reprinted,  for  there 
seem  to  be  only  two  copies  of  it  in  existence, — one  in 
the  Boston  Athenaeum  and  the  other  in  a  collection  in 
Brooklyn. 

But,  in  spite  of  plans,  suggestions,  and  appeals  to 
patriotism,  the  confusion  was  becoming  greater.  Each 
State  was  regulating  its  own  commerce,  duties  on  imports 
were  unequal,  and  the  States  were  discriminating  against 
one  another  and  soon  began  to  levy  duties  on  one  an- 
other's goods  as  if  each  had  been  a  foreign  country  to  all 
the  others.  The  currency  of  each  State  also  varied  from 
the  currency  of  all  the  others,  each  had  its  own  financial 
laws,  and  some  of  them  passed  stay  laws  and  had  other 
contrivances  to  prevent  the  collection  of  debts.  The 
masses  of  the  people,  overwhelmed  with  debt,  were  clam- 
oring for  fresh  issues  of  paper  money.  Some  of  them 
became  anarchists  and  preached  the  abolition  of  all 
courts  and  law.  In  Massachusetts  and  New  Hampshire 
these  wild  opinions  brought  on  actual  riot  and  rebellion  ; 
the  courts  were  dispersed  and  the  legislature  intimidated 
by  armed  mobs. 

254 


Evolution  of  Federalism 

In  the  midst  of  all  this  demoralization,  in  the  year 
1785,  Maryland  and  Virginia  wanted  to  connect  the 
Potomac  with  the  Ohio  for  the  sake  of  their  commercial 
interests,  and  Maryland,  Pennsylvania,  and  Delaware 
wanted  a  canal  to  connect  the  Chesapeake  with  the 
Delaware.  This  slight  bond  of  common  commercial 
interest  among  four  States  led  to  the  suggestion  of  a 
convention  to  regulate  the  commerce  of  the  whole 
Union.  The  first  meeting  at  Annapolis  was  of  five 
States, — New  York,  New  Jersey,  Delaware,  Pennsyl- 
vania, and  Virginia, — and  after  a  short  session  the  mem- 
bers adjourned,  with  a  recommendation  for  a  meeting 
of  all  the  States  to  devise  measures  for  a  general  govern- 
ment adequate  to  the  exigencies  of  the  Union. 

In  the  mean  time  a  committee  of  Congress  recom- 
mended that  the  Articles  be  amended  so  as  to  give  Con- 
gress power  to  regulate  foreign  and  domestic  trade, 
collect  duties,  punish  treason  and  crimes  on  the  high 
seas,  create  a  new  system  of  revenue,  and  establish  an 
appellate  court  of  seven  judges  with  jurisdiction  over 
certain  general  questions.  The  suggestion  that  Congress 
regulate  domestic  trade  was  new.  All  previous  powers 
over  commerce  referred  to  foreign  commerce  alone. 
But  the  last  suggestion  of  all — the  idea  of  an  appellate 
federal  court — was  not  only  new,  but  striking,  and 
marks  the  beginning  of  the  federal  judiciary. 

The  States  were  now  gradually  giving  their  approval 
to  the  assembling  of  a  general  convention,  and  it  met  in 
May,  1787,  at  Philadelphia.  A  few  days  after  it  had 
assembled,  Randolph,  of  Virginia,  presented  some  gen- 
eral propositions  to  show  how  the  Articles  of  Confedera- 

255 


Evolution  of  the  Constitution 

lion  might  be  enlarged.  This  plan  of  Randolph's  adopts 
partially  the  idea  set  forth  by  Noah  Webster  that  the 
general  government  should  act  directly  on  the  people 
instead  of  on  the  States. 

He  adopts,  however,  in  its  fulness,  that  other  idea  of 
Webster's,  that  the  arrangement  of  a  single  representa- 
tive body  acting  as  legislature  and  executive  be  aban- 
doned and  that  the  government  be  framed  on  the  model 
of  the  State  governments,  with  separate  departments  of 
legislature,  executive,  and  judiciary.  Randolph's  plan 
was  the  first  attempt  to  carry  out  this  idea,  and  we 
find  him  providing  for  two  houses  of  legislature,  an  ex- 
ecutive elected  by  the  legislature,  and  a  judiciary  de- 
partment consisting  of  an  appellate  court  and  inferior 
tribunals. 

The  jurisdiction  given  the  judiciary  is  expressed 
vaguely,  but  is  quite  large,  and  contains  the  germs  of 
a  great  deal  that  was  afterwards  given.  Piracies  and 
felonies  on  the  seas  and  captures  from  enemies  he  of 
course  included,  and  these  had  appeared  before  ;  but  he 
adds  cases  of  revenue  collection  and  cases  in  which 
foreigners  and  citizens  of  other  States  may  be  interested. 
Thus  an  important  part  of  the  present  jurisdiction  of  the 
United  States  courts — namely,  suits  between  citizens  of 
different  States — was  distinctly  suggested.  He  added 
the  very  vague  jurisdiction  of  "  questions  which  involve 
the  national  peace  and  harmony,"  and  he  also  referred 
to  these  courts  "  impeachments  of  any  national  officer." 

He  recommended  for  the  first  time  that  a  republican 
form  of  government  and  the  integrity  of  its  territory  be 
guaranteed   to  each    State.       Representation   in    both 

256 


Evolution  of  Federalism 

houses  of  the  legislature  was  to  be  in  proportion  to  the 
quotas  of  contribution  or  to  the  number  of  free  inhab- 
itants, "  as  the  one  or  the  other  might  seem  best  in  differ- 
ent cases."  The  lower  house  was  to  be  elected  by  the 
people  of  the  several  States,  and  here  he  followed  Web- 
ster's general  recommendation  that  the  government 
should  be  of  the  people  at  large,  and  not  a  mere  repre- 
sentation of  States. 

The  upper  house  was  to  be  elected  by  the  lower  out 
of  a  proper  number  of  persons  nominated  by  the  indi- 
vidual legislatures.  Certainly  a  rather  strange  sugges- 
tion, yet  showing  a  hint  of  the  future  Senate  as  the 
representative  of  the  States. 

In  giving  power  to  the  legislature  he  said  that  it 
should  have  the  same  that  was  already  exercised  by 
Congress  under  the  Articles  of  Confederation,  and  also 
should  legislate  in  all  cases  in  which  the  separate  States 
were  incompetent  or  in  which  the  harmony  of  the 
United  States  might  be  interrupted  by  individual  legis- 
lation. This  was  very  general,  and,  when  filled  in  with 
a  few  particular  instances,  would  be  ample. 

The  coercive  power  to  enforce  commands,  which  was 
so  lacking  in  Congress  under  the  Articles,  he  attempted 
to  supply,  as  Drayton  had  attempted,  by  giving  power 
"  to  call  forth  the  force  of  the  Union  against  any  member 
of  the  Union  failing  to  fulfil  its  duty." 

But  the  most  curious  provision  was  a  grant  to  the 
legislature  of  power  to  negative  all  laws  passed  by  the 
several  States  contravening  the  articles  of  union.  This 
was  an  attempt  to  prevent  unconstitutional  legislation, 
as  we  should  now  call  it  The  necessity  of  some  such 
«7  257 


Evolution  of  the  Constitution 

provision  had  been  long  felt,  even  in  colonial  times,  and 
we  have  already  considered  the  remedies  proposed,  from 
that  in  Locke's  constitution  for  Carolina  down  to  the 
council  of  censors  in  the  Pennsylvania  constitution  of 
1776. 

Besides  the  power  in  the  national  legislature  to  nega- 
tive unconstitutional  laws  of  the  States,  Randolph  added 
another  security,  in  a  council  of  revision  composed  of 
the  executive  and  "  a  convenient  number  of  the  national 
judiciary,"  which  should  examine  the  acts  not  only  of 
the  State  legislatures  but  also  of  the  national  legislature. 
The  dissent  of  this  council  in  the  case  of  an  act  of  the 
national  legislature  was  to  be  a  rejection  unless  the  act 
were  passed  again.  In  the  case  of  acts  of  State  legis- 
latures the  council  was  apparently  intended  to  act  as 
a  check  upon  the  national  legislature's  declaring  them 
unconstitutional  'The  council  was  to  consider  the  act 
in  question  before  the  negative  of  the  national  legisla- 
ture became  final,  and  if  the  council  dissented  the  act 
of  the  State  was  to  stand  valid  unless  again  negatived  by 
the  national  legislature.  This  arrangement  seems  to 
have  been  a  combination  of  the  plan  of  Locke  and  the 
council  of  censors  of  Pennsylvania. 

Immediately  after  Randolph  had  presented  his  plan, 
Charles  Pinckney,  of  South  Carolina,  presented  another, 
still  more  advanced  and  complete,  and  so  nearly  like 
the  Constitution  as  finally  adopted  that  at  first  sight 
there  seems  to  be  scarcely  any  difference.  It  was  a  more 
definite  and  detailed  plan  than  Randolph's,  which  pro- 
fessed to  be  nothing  but  general  heads  and  suggestions. 

It  adopts  in  their  entirety  the  two  great  ideas  put 
258 


Evolution  of  Federalism 

forth  by  Webster,  that  the  government  should  act  di- 
rectly on  the  people  and  that  it  should  be  modelled  on 
the  State  governments.  Instead  of  beginning  with  the 
assertion  that  the  States  as  separate  bodies  form  the 
government,  it  begins  with  the  words,  "  We  the  people 
of  the  States  do  ordain,  declare,"  etc., — the  first  use  of 
this  expression.  Everything  that  had  been  in  Ran- 
dolph's plan,  the  Articles  of  Confederation,  and  all  the 
previous  plans  seems  to  have  been  swept  into  this  plan 
of  Pinckney's.  He  amplifies  and  extends  everything, 
adds  new  developments,  and  adopts  more  than  ever  the 
forms  of  the  State  governments. 

He  has,  of  course,  two  houses  of  legislature,  and,  like 
Randolph,  he  has  the  upper  house  elected  by  the  lower 
house,  with  the  same  suggestion  that  a  certain  number 
shall  be  chosen  from  each  State,  and  that  it  shall  repre- 
sent the  States  as  the  lower  house  represents  the  peo- 
ple. Money-bills  must  originate  in  the  lower  house, 
and  cannot  be  altered  by  th^  Senate.  This  was  taken 
from  the  State  constitutions,  and  appears  here  for  the 
first  time  in  a  federal  document  The  executive  is  called 
President,  and  is  given  the  modified  veto  power  taken 
from  the  constitution  of  New  York,  as  shown  in  a  pre- 
vious chapter,  and  the  duty  of  furnishing  information  to 
the  legislature,  which  was  a  provision  taken  from  the 
same  source.  He  is  to  take  care  that  the  laws  be 
duly  executed,  commission  all  officers,  grant  pardons 
and  reprieves,  be  commander-in-chief  of  the  army  and 
navy, — all  of  which  are  ideas  taken  from  the  various 
constitutions  of  the  States. 

The  powers  granted  to  the  legislature  are  given  almost 

359 


Evolution  of  the  Constitution 

in  the  very  words  afterwards  adopted  in  the  Constitu- 
tion. Everything  that  had  been  previously  suggested 
is  included.  The  legislative  department  is  to  lay  and 
collect  not  only  taxes,  but  also  duties,  imposts,  and  ex- 
cises ;  to  regulate  commerce  with  foreign  nations,  and 
among  the  several  States,  borrow  money,  establish  post- 
offices,  raise  armies,  equip  fleets,  coin  money,  establish 
a  judiciary,  and  punish  treason. 

The  new  powers  are  to  subdue  a  rebellion  in  any  State 
on  the  application  of  its  legislature ;  to  exercise  exclu- 
sive jurisdiction  in  dock-yards,  arsenals,  and  forts  ;  to 
establish  military  and  post  roads,  a  university,  and  uni- 
form rules  of  naturalization ;  to  have  exclusive  juris- 
diction in  a  tract  of  land  ten  miles  square  for  the  seat 
of  government ;  to  punish  counterfeiting  and  offences 
against  the  laws  of  nations  ;  to  organize  the  militia  of 
the  several  States ;  and,  finally,  a  very  necessary  addition, 
— namely,  the  right  "  to  make  all  laws  necessary  for 
carrying  the  foregoing  powers  into  execution." 

The  power  to  declare  war  was  given  exclusively  to 
the  Senate,  also  the  power  to  appoint  ambassadors  and 
judges  of  the  Supreme  Court  and  to  regulate  the  man- 
ner of  deciding  boundary  disputes  between  the  States. 

The  power  to  regulate  commerce  was  slightly  re- 
stricted by  the  requirement  of  the  eissent  of  two-thirds 
of  each  house  ;  and  both  houses  were  prohibited  from 
granting  any  title  of  nobility  or  passing  any  law  on  the 
subject  of  religion  or  abridging  the  liberty  of  the  press. 
The  privilege  of  the  writ  of  habeas  corpus  was  not  to 
be  suspended  except  in  case  of  rebellion  or  invasion,  as 
in  the  Massachusetts  constitution  of  1780. 

260 


Evolution  of  Federalism 

It  was  certainly  a  very  advanced  and  complete  con- 
stitution. The  restrictions  on  the  rights  of  the  States, 
however,  were  very  much  the  same  that  had  appeared 
before,  and  not  so  numerous  as  they  afterwards  became 
in  the  Constitution.  There  was  no  provision  for  pre- 
venting the  passage  of  unconstitutional  laws  by  the  gen- 
eral government,  but  the  States  were  prevented  from  it 
by  giving  the  national  legislature  the  right  to  annul 
their  laws,  as  Randolph  had  suggested. 

Two  other  plans  were  afterwards  offered  to  the  con- 
vention, one  by  Paterson,  of  New  Jersey,  and  the  other 
by  Alexander  Hamilton.  But  neither  of  them  was  as 
complete  as  Pinckney's,  and  they  seem  to  have  been 
aside  from  the  line  of  development  Pinckney's  was 
directly  in  the  line,  and  so  close  to  the  Constitution  as 
adopted,  not  only  in  its  general  provisions,  but  also  in 
language,  that  the  difference  can  be  dismissed  in  a  few 
words. 

Pinckney's  plan  began  with  the  words,  "We  the 
people  of  the  States  of  New  Hampshire,  Massachusetts," 
etc.,  mentioning  each  one.  The  Constitution  begins, 
"We  the  people  of  the  United  States,"  getting  still 
closer  to  the  conception  that  it  is  the  people,  and  not 
the  States,  that  create  the  government  In  the  Consti- 
tution the  Senate  is  elected  by  the  legislatures  of  the 
different  States,  two  from  each  State,  instead  of  being 
elected  by  the  lower  house  from  citizens  in  each  State, 
as  in  Pinckney's  and  Randolph's  plans.  In  the  Consti- 
tution the  Senate  is  to  try  impeachments  instead  of  the 
judiciary ;  a  vice-president  is  added,  and  duties,  im- 
posts,  and  excises  must   be   uniform    throughout   the 

a6i 


Evolution  of  the  Constitution 

United  States.  In  the  powers  of  Congress  there  are 
the  new  ones  of  regulating  commerce  with  the  Indian 
tribes,  establishing  uniform  laws  on  the  subject  of 
bankruptcies,  and  granting  patents  and  copyrights. 
The  others  are  all  taken  from  Pinckney's  plan,  in  many 
instances  word  for  word. 

The  President's  powers  in  the  Constitution  differ 
somewhat  from  those  given  in  Pinckney's  plan.  The 
President  shares  with  the  Senate  the  right  to  make 
treaties  and  to  appoint  ambassadors  and  judges,  which 
Pinckney  gave  exclusively  to  the  Senate  ;  and  the  judi- 
cial department  has  a  wider  scope  than  Pinckney 
gave  it 

The  provision  in  the  Constitution  prohibiting  the 
States  from  passing  any  law  impairing  the  obligation  of 
contracts  was  altogether  new,  and  requires  some  discus- 
sion. It  was  unknown  to  any  of  the  laws  of  Europe  or, 
indeed,  of  the  world,  and  seems  to  have  been  altogether 
the  result  of  some  very  bitter  experience  in  Pennsyl- 
vania. It  was  introduced  into  the  Constitution  by  James 
Wilson,  one  of  the  delegates  from  that  State. 

During  colonial  times,  the  College  of  Philadelphia, 
founded  by  Franklin,  had  been  in  the  hands  of  the 
Church  of  England  people  and  the  proprietary  party  of 
the  colony.  The  provost  of  the  college.  Dr.  Smith,  had 
been  a  party  man  of  considerable  violence,  and  the  col- 
lege. Dr.  Smith,  and  the  proprietary  party  were  greatly 
disliked  by  the  masses  of  the  people  in  Pennsylvania. 
When  the  Revolution  came  the  masses  got  into  power 
and  proceeded  to  revenge  themselves  on  their  old  ene- 
mies.    They  drove  from  office,  and  even  from  social 

262 


Evolution  of  Federalism 

influence,  the  class  of  men  who  had  formerly  ruled  the 
commonwealth,  until  that  class  were  gathered  together 
in  the  college  as  their  last  stronghold. 

Among  this  class  were  Robert  Morris  and  James 
Wilson,  signers  of  the  Declaration  of  Independence,  who 
stood  high  in  national  councils,  but  were  in  a  minority 
in  the  government  of  their  State.  The  majority  saw  an 
opportunity  to  injure  them  by  destroying  their  college, 
and  an  act  of  the  State  legislature  was*  passed  in  No- 
vember, 1779,  declaring  the  college  charter  void,  dis- 
solving the  board  of  trustees  and  the  faculty,  and  giving 
all  the  property  of  the  institution  to  new  trustees,  who 
were,  of  course,  selected  by  the  majority  party.  This 
was  a  severe  blow  to  the  interests  of  higher  education  in 
Pennsylvania,  from  which  they  are  only  just  recovering. 

The  new  college  created  on  the  ruins  of  the  old  one 
was  a  failure,  and  in  1789  the  legislature  repented  of 
its  act  of  spoliation  and  returned  the  confiscated  prop- 
erty to  the  old  College  of  PhiladelphicL  The  two  col- 
leges— the  old,  restored  one  and  the  new  one — existed 
side  by  side  for  some  years,  until  at  last  a  union  was 
effected  which  produced  the  present  University  of  Penn- 
sylvania. 

This  spoliation  of  the  college  had  been  done  in  the 
teeth  of  a  provision  of  the  State  constitution  which  pro- 
tected chartered  institutions  from  such  attacks.  But 
there  was  no  way  of  enforcing  the  State  constitution, 
and  the  legislature  did  what  it  pleased.  People  began 
to  realize  that  all  educational  institutions,  as  well  as 
charitable  and  business  enterprises,  were  at  the  mercy 
of  the  State  legislature,  and  this  feeling  was  intensified 

263 


Evolution  of  the  Constitution 

when  the  same  legislature,  in  1785,  annulled  the  charter 
of  the  Bank  of  North  America.  Something,  it  was  gen- 
erally believed,  must  be  done  to  give  the  new  national 
government  the  power  to  prevent  such  deeds.  Wilson, 
who  had  been  a  friend  and  supporter  of  both  the  bank 
and  the  college,  solved  the  problem  by  providing  in  the 
national  document  that  "  no  State  shall  pass  any  law 
impairing  the  obligation  of  contracts."  It  is  a  simple, 
short  sentence',  but  it  has  stood  the  test  of  nearly  a  hun- 
dred years  of  judicial  decision,  and  the  principle  is  now 
well  established  that  the  granting  of  a  charter  is  a  con- 
tract between  the  legislature  and  the  corporation  which 
cannot  afterwards  be  impaired  or  altered  by  the  legis- 
lature without  the  corporation's  consent. 

Under  this  decision  has  been  built  up  the  enormous 
power  of  railroads,  manufactories,  and  other  business 
corporations  which  have  played  so  important  a  part 
in  the  development  of  the  United  States.  This  simple 
sentence,  backed  by  the  power  of  the  general  govern- 
ment, has  protected  those  enterprises  from  Granger, 
Populist,  and  other  fanatical  movements  in  different 
States  which  would  otherwise  have  crippled  or  destroyed 
them.  Sometimes  a  belief  has  seemed  to  be  gaining 
ground  that  this  clause  protected  the  corporations  too 
well,  and  gave  them  too  much  power ;  but  the  havoc 
that  State  legislatures  committed  before  there  was  such 
protection  seems  to  show  that  if  the  protection  is  ex- 
cessive it  is  excess  on  the  safer  side.  It  has  given  a 
stability  to  investments  and  enterprises,  commercial  as 
well  as  religious,  collegiate,  and  scientific,  which  could 
not  have  been  had  without  it 

264 


Evolution  of  Federalism 

When  the  Constitution  was  finally  adopted  by  the 
people  in  1789,  the  desire  for  a  firmer  union  and  stronger 
government  was  gratified,  and  development  almost 
ceased.  The  hundred  years  that  have  since  elapsed 
have  brought  little  change  except  a  few  amendments 
extending  somewhat  the  federal  power  over  the  States, 
and  some  restricting  the  federal  power.  The  first  eleven 
amendments  are  usually  considered  as  a  part  of  the 
original  Constitution,  because  they  were  adopted  imme- 
diately after  the  Constitution  went  into  effect,  and  they 
contain,  for  the  most  part,  those  bills-of-rights  pro- 
visions, securing  trial  by  jury,  freedom  of  religion  and 
of  the  press,  and  freedom  from  unreasonable  search, 
which,  as  we  have  seen,  had  grown  up  as  restrictions  on 
the  power  of  the  individual  States.  The  people  insisted 
that  there  should  be  similar  restrictions  on  the  national 
government 

The  essential  features  of  the  Constitution,  however, 
are  unchanged.  The  Senate  and  the  House  of  Repre- 
sentatives and  their  relations  to  each  other  are  the  same. 
The  President  and  his  duties  and  relations  to  Congress 
have  not  ciltered.  In  fact,  our  government  has  been 
in  these  respects  almost  stationary  during  a  century  in 
which  the  most  conservative  European  governments 
have  suffered  considerable  change. 

Not  only  have  the  administrative  parts  of  the  govern- 
ment which  were  evolved  from  the  forms  of  the  State 
constitutions  remained  unchanged,  but  the  federalism, 
the  nationality,  and  the  indestructibility  of  the  Union 
are  unaltered.  As  soon  as  the  new  Constitution  was  sub- 
mitted to  the  States  for  approval  in  1 788,  the  party  that 

265 


Evolution  of  the  Constitution 

had  always  been  jealous  of  any  interference  with  State 
rights  complained  bitterly  that  it  was  a  national  govern- 
ment, and  not  a  confederacy, — that  it  was  a  creation  of 
the  people,  and  not  of  the  States.  Opposition  to  its 
approval  was  organized  on  this  ground,  and  the  debates 
of  the  State  conventions,  especially  those  of  Virginia, 
Maryland,  and  Pennsylvania,  disclose  in  full  the  argu- 
ments of  those  who  urged  its  rejection,  because,  as 
Patrick  Henry  put  it,  the  opening  sentence  was  "We 
the  people"  instead  of  "We  the  States."  But  the  ma- 
jority of  the  people  ratified  it  in  the  form  the  framers 
gave  it  and  intended  to  give  it, — a  national  Union  which 
could  be  broken  only  by  rebellion  and  revolution. 


266 


CHAPTER    VII. 

THE   EVOLUTION    OF   FEDERALISM    SHOWN    IN    DETAIL. 

I.  Union  and  Representation. 

This  section  shows  the  beginnings  of  the  various  plans 
of  union,  and  also  the  attempts  to  solve  the  question 
how  the  provinces  should  be  represented  in  a  union. 
It  was  thought  by  some  that  the  provinces  should  be 
all  equal  in  their  representation,  and  by  others  that  each 
should  be  represented  according  to  its  population,  or 
power,  or  by  the  amount  of  its  contribution  towards  the 
objects  of  the  union.  The  small  provinces,  of  course, 
favored  equal  representation,  and  the  large  ones  repre- 
sentation by  population  or  power.  It  seems  probable, 
however,  that  there  was  a  majority  in  favor  of  repre- 
sentation by  population,  but  all  were  agreed  that  it 
could  not  be  accomplished  without  an  accurate  census, 
which  in  colonial  times  was  difficult  to  obtain. 

Attempts  were  made  to  satisfy  all  parties  by  giving 
representatives  to  each  province  according  to  its  popu- 
lation, but  allowing  each  province  only  one  vote.  In 
the  Constitution  this  same  plan  was  carried  out  by  allow- 
ing representation  by  population  in  the  lower  house  and 
representation  by  States  in  the  Senate,  and  for  carrying 
this  into  effect  it  was  provided  that  a  census  should  be 
taken  every  ten  years. 

Some  quotations  from  State  constitutions  are  given 
because  they  show  the  development  of  the  idea  that 
representation  should  be  based  on  an  accurate  enumera- 

267 


Evolution  of  the  Constitution 

tion  of  the  people.  In  England  the  representation  in 
Parliament  was  not  based  on  any  such  enumeration,  but 
was  confessedly  unequal,  and  large  bodies  of  the  people 
were  without  any  representation  at  all. 

"  It  is  also  agreed  that  for  the  managing  and  concluding  of  all 
affairs  proper  and  concerning  the  whole  confederation  two  com- 
missioners shall  be  chosen  by  and  out  of  each  of  these  four  juris- 
dictions,— namely,  two  for  the  Massachusetts,  two  for  Plymouth, 
two  for  Connecticut,  and  two  for  New  Haven, — ^beingall  in  church 
fellowship  with  us."     (New  England  Union  of  1643.) 

"That  in  order  to  it  two  persons  well  qualified  for  sense,  so- 
briety, and  substance  be  appointed  by  each  province  as  their 
representatives  or  deputies,  which,  in  the  whole,  make  the  congress 
to  consist  of  twenty  persons."     (Penn's  Plan  of  Union,  1696.) 

•'  Deputies  would  be  more  equally  proportioned  in  manner  fol- 
lowing,— viz.  :  Virginia,  4  ;  Maryland,  3  ;  New  York,  2  ;  Boston,  3  ; 
Connecticut,  2  ;  Rhode  Island,  2  ;  Pennsylvania,  i  ;  the  two  Caro- 
linas,  I  ;  each  of  the  two  Jerseys,  i."     (A  Virginian's  Plan,  1701.) 

"  That  the  said  captain-general  ...  be  attended  with  a 
general  council,  to  be  constituted  of  two  members  from  the  as- 
sembly of  each  province,  and  that  one  representative  or  deputy 
from  each  province  be  changed  or  re-elected  every  year,  which 
would  the  better  inform  the  said  council  of  the  condition  of  every 
province  to  the  contributing  towards  the  preservation  of  the 
whole."     (Lord  Stair's  Plan,  1721.) 

"It  is  further  humbly  proposed  that  two  deputies  shall  be 
annually  elected  by  the  council  and  assembly  of  each  province, 
who  are  to  be  in  the  nature  of  a  great  council  or  general  conven- 
tion of  the  estates  of  the  colonies,  and  by  the  order,  consent,  or 
approbation  of  the  lieutenant  or  governor-general,  shall  meet 
together,  consult,  and  advise  for  the  good  of  the  whole."  (Daniel 
Coxe's  Plan,  1722.) 

"  That  within  months  after  the  passing  of  such  act  the 

house  of  representatives  in  the  several  assemblies  that  happened 
to  be  sitting  within  that  time,  or  that  shall  be  especially  for  that 

268 


Federalism  in  Detail 

purpose  convened,  may  and  shall  choose  members  for  the  grand 
council  in  the  following  proportions,  that  is  to  say  : 

'*  Massachusetts  Bay 7 

New  Hampshire 2 

Connecticut 5 

Rhode  Island 2 

New  York 4 

New  Jerseys 3 

Pennsylvania 6 

Maryland 4 

Vii^nia 7 

North    Carolina 4 

South  Carolina 4 

"48 

"  That  after  the  first  three  years,  when  the  proportion  of  money 
arising  out  of  each  colony  to  the  general  treasury  can  be  known, 
the  number  of  members  to  be  chosen  for  each  colony  shall  from 
time  to  time  in  all  ensuing  elections  be  regulated  by  that  propor- 
tion (yet  so  as  that  the  number  to  be  chosen  by  any  one  province 
be  not  more  than  seven  nor  less  than  two)."  (Frankhn's  Plan 
of  1754.) 

"  It  is  humbly  proposed  by  act  of  parliament  that  the  house  of 
representatives  of  each  colony  be  enjoined,  within  a  limited  time 
after  the  passing  of  such  act,  to  choose  members  to  represent 
them  in  a  grand  council  in  the  following  proportion,  viz. : 

"  Massachusetts  Bay 7 

Connecticut 5 

New  York 4 

Pennsylvania 6 

Virginia 7 

South  Carolina 4 

New  Hampshire 2 

Rhode  Island 2 

New  Jersey 3 

Maryland 4 

North   Carolina 4 

In  the  whole 48  " 

(Hutchinson's  Plan,  1754.) 

269 


Evolution  of  the  Constitution 

••That  the  several  assemblies  shall  choose  members  for  the 
grand  council  in  the  following  proportions,  viz."  [The  propor- 
tion for  each  colony  is  left  blank.]     (Galloway's  Plan,  1774.) 

"The  number  of  delegates  to  be  elected  and  sent  to  congress 
by  each  colony  shall  be  regulated,  from  time  to  time,  by  the 
number  of  such  polls  returned,  so  as  that  one  delegate  be  allowed 
for  every  five  thousand  polls."  (Frankhn's  Articles  of  Confed- 
eration, 1775.) 

"  But  as  representation  in  proportion  to  the  number  of  taxable 
inhabitants  is  the  only  principle  which  can  at  all  times  secure 
liberty,  and  make  the  voice  of  a  majority  of  the  people  the  law  of 
the  land  ;  therefore  the  general  assembly  shall  cause  complete 
lists  of  the  taxable  inhabitants  in  the  city  and  each  county  in  the 
commonwealth  respectively,  to  be  taken  and  returned  to  them,  on 
or  before  the  last  meeting  of  the  assembly  elected  in  the  year 
one  thousand  seven  hundred  and  seventy-eight,  who  shall  appoint 
a  representation  to  each,  in  proportion  to  the  number  of  taxables 
in  such  returns  ;  which  representation  shall  continue  for  the  next 
seven  years  afterwards,  at  the  end  of  which  a  new  return  of  the 
taxable  inhabitants  shall  be  made,  and  a  representation  agreeable 
thereto  appointed  by  the  said  assembly,  and  so  on  septennially 
forever."     (Pennsylvania  Constitution  of  1776.) 

'  •  That  as  soon  after  the  expiration  of  seven  years  (subsequent 
to  the  termination  of  the  present  war)  as  may  be  a  census  of  the 
electors  and  inhabitants  in  this  State  be  taken,  under  the  direction 
of  the  legislature.  And  if,  on  such  census,  it  shall  appear  that 
the  number  of  representatives  in  assembly  from  the  said  counties 
is  not  justly  proportioned  to  the  number  of  electors  in  the  said 
counties  respectively,  that  the  legislature  do  adjust  and  apportion 
the  same  by  that  rule.  And  further,  that  once  in  every  seven 
years,  after  the  taking  of  the  said  first  census,  a  just  account  of 
the  electors  resident  in  each  county  shall  be  taken,  and  if  it  shall 
thereupon  appear  that  the  number  of  electors  in  any  county  shall 
have  increased  or  diminished  one  or  more  seventieth  parts  of  the 
whole  number  of  electors,  which,  on  the  said  first  census,  shall  be 
found  in  this  State,  the  number  of  representatives  for  such  county 
shall  be  increased  or  diminished  accordingly,  that  is  to  say,  one 

270 


Federalism  in  Detail 

representative  for  every  seventieth  part  as  aforesaid."  (New 
York  Constitution  of  1777.) 

"For  the  more  convenient  management  of  the  general  inter- 
ests of  the  United  States,  delegates  shall  be  annually  appointed 
in  such  manner  as  the  legislature  of  each  state  shall  direct,  to 
meet  in  congress  on  the  first  Monday  in  November  in  every 
year,  with  a  power  reserved  to  each  state  to  recall  its  delegates, 
or  any  of  them,  at  any  time  within  the  year,  and  to  send  others 
in  their  stead  for  the  remainder  of  the  year, 

"No  state  shall  be  represented  in  congress  by  less  than  two 
nor  by  more  than  seven  members  ;  and  no  person  shall  be  capa- 
ble of  being  a  delegate  for  more  than  three  years,  in  any  term  of 
six  years  ;  nor  shall  any  person,  being  a  delegate,  be  capable  of 
holding  any  office  under  the  United  States  for  which  he,  or  an- 
other for  his  benefit,  receives  any  salary,  fees,  or  emolument  of 
any  kind. 

"  Elach  state  shall  maintain  its  own  delegates  in  any  meeting 
of  the  states,  and  while  they  act  as  members  of  the  committee 
of  the  states. 

"In  determining  questions  in  the  United  States  in  congjress 
assembled,  each  state  shall  have  one  vote."  (Articles  of  Con- 
federation, 1778.) 

' '  Each  state  shall  be  represented  in  congress  by  not  less  than 
three  nor  more  than  seven  delegates,  and  shall  have  one  vote  in 
congress,  where  all  questions  shall  be  determined  by  a  majority 
of  votes,  except  such  as  shall  be  hereafter  mentioned."  (Dray- 
ton's Articles  of  Confederation,  1778.) 

"  That  at  the  expiration  of  seven  years  after  the  passing  of  this 
constitution,  and  at  the  end  of  every  fourteen  years  thereafter,  the 
representation  of  the  whole  state  shall  be  proportioned  in  the 
most  equal  and  just  manner  according  to  the  particular  and  com- 
parative strength  and  taxable  property  of  the  different  parts  of 
the  same,  regard  being  always  had  to  the  number  of  white  in- 
habitants and  such  taxable  property."  (South  Carolina  Consti- 
tution of  1778.) 

"  The  rights  of  suffrage  in  the  national  legislature  ought  to  be 
proportioned  to  the  quotas  of  contribution,  or  to  the  number  of 

271 


Evolution  of  the  Constitution 

free  inhabitants,  as  the  one  or  the  other  rule  may  seem  best  in 
different  cases."     (Randolph's  Plan,  1787.) 

"Until  a  census  of  the  people  shall  be  taken,  in  the  manner 
hereinafter  mentioned,  the  house  of  delegates  shall  consist  of 
,  to  be  chosen  from  the  different  states  in  the  following  pro- 
portions :  For  New  Hampshire,  ;  for  Massachusetts,  ;  for 
Rhode  Island,  ;  for  Connecticut,  ;  for  New  York, 
for  New  Jersey,  ;  for  Pennsylvania,  ;  for  Delaware, 
for  Maryland,  ;  for  Virginia,  ;  for  North  CaroHna, 
for  South  Carolina,  ;  for  Georgia,  ;  and  the  legislature 
shall  hereinafter  regulate  the  number  of  delegates  by  the  number 
of  inhabitants,  according  to  the  provisions  hereinafter  made,  at  the 
rate  of  one  for  every  thousand."     (Pinckney's  Plan,  1787.) 

"  Representatives  and  direct  taxes  shall  be  apportioned  among 
the  several  states  which  may  be  included  within  this  Union,  ac- 
cording to  their  respective  numbers,  which  shall  be  determined 
by  adding  to  the  whole  number  of  free  persons,  including  those 
bound  to  service  for  a  term  of  years,  and  excluding  Indians  not 
taxed,  three-fifths  of  all  other  persons.  The  actual  enumeration 
shall  be  made  within  three  years  after  the  first  meeting  of  the 
Congress  of  the  United  States,  and  within  every  subsequent  term 
of  ten  years  in  such  manner  as  they  shall  by  law  direct.  The 
number  of  representatives  shall  not  exceed  one  for  every  thirty 
thousand,  but  each  state  shall  have  at  least  one  representative  ; 
and  until  such  enumeration  shall  be  made  the  State  of  New 
Hampshire  shall  be  entitled  to  choose  three ;  Massachusetts, 
eight ;  Rhode  Island  and  Providence  Plantations,  one ;  Con- 
necticut, five ;  New  York,  six  ;  New  Jersey,  four ;  Pennsylvania, 
eight ;  Delaware,  one ;  Maryland,  six ;  Virginia,  ten  ;  North 
Carolina,  five  ;  South  Carolina,  five  ;  and  Georgia,  three. 

"The  senate  of  the  United  States  shall  be  composed  of  two 
senators  from  each  state."     (The  Constitution.) 

"Representatives  shall  be  apportioned  among  the  several 
states  according  to  their  respective  numbers,  counting  the  whole 
number  of  persons  in  each  state,  excluding  Indians  not  taxed. 
But  when  the  right  to  vote  at  any  election  for  the  choice  of  electors 
for  President  and  Vice-President  of  the  United  States,  representa- 

272 


Federalism  in  Detail 

tives  in  congress,  the  executive  and  judicial  officers  of  a  state, 
or  the  members  of  the  legislature  thereof,  is  denied  to  any  of  the 
male  inhabitants  of  such  state,  being  twenty-one  years  of  age  and 
citizens  of  the  United  States,  or  in  any  way  abridged,  except  for 
participation  in  rebellion  or  other  crime,  the  basis  of  representa- 
tion therein  shall  be  reduced  in  the  proportion  which  the  number 
of  such  male  citizens  shall  bear  to  the  whole  number  of  male 
citizens  twenty-one  years  of  age  in  such  state."  (Fourteenth 
Amendment  to  the  Constitution.) 

2.  Census. 
The  clause  in  the  Constitution  providing  for  a  census 
of  all  the  inhabitants  every  ten  years  is  of  great  impor- 
tance, for  on  it  depend  the  representation  in  Congress 
and  the  confidence  of  the  people  that  they  are  fairly 
represented.  Unless  there  always  had  been  this  feeling 
that  they  were  fairly  represented,  it  would  have  been 
impossible  to  preserve  the  Union.  EquaHty  in  this,  as 
in  other  matters,  is  one  of  our  essentials,  and  from  the 
earliest  colonial  times  it  was  felt  that  it  could  be  accom- 
plished only  by  mathematical  accuracy,  or  the  nearest 
approximation  to  such  accuracy  as  could  be  attained. 

"That  the  commissioners  for  each  jurisdiction  from  time  to 
time,  as  there  shall  be  occasion,  bring  a  true  account  and  number 
of  all  the  males  in  every  plantation,  or  any  way  belonging  to,  or 
under  their  several  jurisdictions,  of  what  quality,  or  condition 
soever  they  be,  from  sixteen  years  to  three  score,  being  inhab- 
itants there."     (New  England  Union  of  1643.) 

"  And  the  delegates  are  to  bring  with  them  to  every  congress 
an  authenticated  return  of  the  number  of  polls  in  the  respective 
provinces,  which  is  to  be  taken  triennially  for  the  purposes  above 
mentioned"  [i.e.,  for  apportioning  the  number  of  delegates  to  be 
allowed  each  colony].  (Franklin's  Articles  of  Confederation, 
I775-) 

18  273 


Evolution  of  the  Constitution 

"That  as  soon  after  the  expiration  of  seven  years  (subsequent 
to  the  termination  of  the  present  war)  as  may  be  a  census  of  the 
electors  and  inhabitants  in  this  state  be  taken  under  the  direction 
of  the  legislature.  And,  further,  that  once  in  every  seven  years 
after  the  taking  of  the  said  first  census  a  just  account  of  the 
electors  resident  in  each  county  shall  be  taken."  (New  York 
Constitution  of  1777.) 

"  The  legislature  in  the  several  states  shall,  from  time  to  time, 
cause  all  the  white  inhabitants  therein  to  be  numbered  as  nearly 
as  may  be  ;  the  persons  appointed  to  number  them  shall  be  sworn 
to  make  the  most  diligent  and  accurate  inquiry  that  they  can,  and 
to  return  to  the  executive  power  in  the  state  the  true  number  they 
shall  so  find  ;  they  shall  be  paid  for  their  trouble  and  punished 
for  their  neglect,  if  any  there  shall  be  ;  the  executive  authority  in 
each  state,  having  received  such  a  return,  shall  without  loss  of 
time  send  it,  or  an  exact  copy  of  it,  to  the  congress  ;  such  a  return 
to  the  congress  shall  be  made  before  the  first  day  of  January  next, 
and  in  every  seventh  year  thereafter."  (Drayton's  Articles  of 
Confederation,  1778.) 

"The  actual  enumeration  shall  be  made  within  three  years 
after  the  first  meeting  of  the  congress  of  the  United  States  and 
within  every  subsequent  term  of  ten  years,  in  such  manner  as 
they  shall  by  law  direct."     (The  Constitution.) 

3.  Name. 

"Wherefore  it  is  fully  agreed  and  concluded  .  .  .  that  they 
all  be  and  henceforth  be  called  by  the  name  of  the  United  Colo- 
nies of  New  England."     (New  England  Union  of  1643.) 

' '  The  name  of  this  confederacy  shall  henceforth  be  the  United 
Colonies  of  North  America."  (Franklin's  Articles  of  Confedera- 
tion, 1775.) 

"The  style  of  this  confederacy  shall  be  'The  United  States 
of  America.'  "     (Articles  of  Confederation,  1778.) 

"The  style  of  the  confederacy  shall  be  the  United  States  of 
America."     (Drayton's  Articles  of  Confederation,  1778.) 

"The  style  of  this  government  shall  be  '  The  United  States  of 
America.'"     (Pinckney's  Plan,  1787.) 

274 


Federalism  in  Detail 

"We,  the  people  of  the  United  States,  ...  do  ordain  and 
establish  this  constitution  for  the  United  States  of  America," 
(The  Constitution.) 

4.  General  Powers  of  Congress. 

"Which  shall  bring  full  power  from  their  several  general 
courts  respectively  to  hear,  examine,  weigh,  and  determine  all 
affairs  of  our  war  or  peace,  leagues,  aids,  charges,  and  numbers 
of  men  for  war,  division,  and  spoils,  and  whatsoever  is  gotten  by 
conquest,  receiving  of  more  confederates  for  plantations  into 
combination  with  any  of  the  confederates,  and  all  things  of  like 
nature  which  are  the  proper  concomitants  or  consequence  of  such 
a  confederation,  for  amity,  offence,  and  defence,  not  intermed- 
dling with  the  government  of  any  of  the  jurisdictions,  which,  by 
the  third  article,  is  preserved  entirely  to  themselves."  (New 
England  Union  of  1643.) 

' '  That  the  president-general,  by  and  with  the  advice  and  con- 
sent of  the  general  council,  hold  and  exercise  all  the  legislative 
rights,  powers,  and  authorities  necessary  for  regulating  and  ad- 
ministering all  the  general  police  and  affairs  of  the  colonies,  in 
which  Great  Britain  and  the  colonies,  or  any  of  them,  the  colo- 
nies in  general,  or  more  than  one  colony,  are  in  any  manner  con- 
cerned, as  well  civil  and  criminal  as  commercial."  (Galloway's 
Plan,  1774.) 

"  That  the  national  legislature  ought  to  be  empowered  to  enjoy 
the  legislative  rights  vested  in  congress  by  the  confederation, 
and,  moreover,  to  legislate  in  all  cases  to  which  the  separate 
states  are  incompetent,  or  in  which  the  harmony  of  the  United 
States  may  be  interrupted  by  the  exercise  of  individual  legisla- 
tion."    (Randolph's  Plan,  1787.) 

"  The  legislature  of  the  United  States  shall  have  the  power  to 
make  all  laws  for  carrying  the  foregoing  powers  into  execution." 
(Pinckney's  Plan,  1787.) 

' '  The  congress  shall  have  power  to  lay  and  collect  taxes, 
duties,  imposts,  and  excises,  to  pdy  the  debts  and  provide  for 
the  common  defence  and  general  welfare  of  the  United  States. 

27s 


Evolution  of  the  Constitution 

• '  To  make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all  other  powers 
vested  by  this  constitution  in  the  government  of  the  United  States, 
or  in  any  department  or  officer  thereof."     (The  Constitution,) 

5.  Presiding  Officer  of  Congress. 
Besides  the  quotations  given  under  this  section  from 
the  plans  of  union,  many  more  might  be  given  from  the 
colonial  charters  and  constitutions  and  the  constitutions 
of  I  'j'j^^  But,  as  they  are  all  to  the  same  effect  in  giving 
the  lower  house  of  the  legislature  the  power  to  choose 
their  presiding  officer,  it  seems  hardly  necessary  to  print 
them. 

"  It  is  further  agreed  that  at  each  meeting  of  these  eight  com- 
missioners, whether  ordinary  or  exti^aordinary,  they,  or  six  of 
them  agreeing,  as  before,  may  choose  their  president  out  of  them- 
selves, whose  office  and  work  shall  be  to  take  care  and  direct  for 
order  and  a  comely  carrying  on  of  all  proceedings  in  the  present 
meeting.  But  he  shall  be  invested  with  no  such  power  or  respect 
as  by  which  he  shall  hinder  the  propounding  or  progress  of  any 
business,  or  any  way  cast  the  scales,  otherwise  than  in  the  prece- 
dent article  is  agreed."     (New  England  Union  of  1643.) 

"That  the  king's  commissioners,  for  that  purpose  specially 
appointed,  shall  have  the  chair  and  preside  in  the  said  congress." 
(Penn's  Plan  of  Union,  1696.) 

"  That  the  grand  council  have  power  to  choose  their  speaker." 
(Franklin's  Plan  of  1754.) 

"That  the  assent  of  the  president  be  made  necessary  to  all 
acts  of  the  council,  saving  the  choice  of  a  speaker."  (Hutchin- 
son's Plan,  1754.) 

' '  That  the  general  council  shall  have  power  to  choose  their 
own  speaker."     (Galloway's  Plan,  1774.) 

"The  United  States  in  congress  assembled  shall  have  au- 
thority to  appoint  one  of  their  number  to  preside  :  provided,  that 
no  person  be  allowed  to  serve  in  the  office  of  president  more  than 

276 


Federalism  in  Detail 

one  year  in  any  term  of  three  years."  (Articles  of  Confedera- 
tion, 1778.) 

"The  congress  shall  have  power  to  appoint  one  of  their  num- 
ber to  preside  in  it ;  nor  shall  any  person  officiate  as  president 
of  the  congress  longer  than  one  year  in  any  term  of  three  years." 
(Drayton's  Articles  of  Confederation,  1778.) 

"  The  House  of  Representatives  shall  choose  their  speaker  and 
other  officers."     (The  Constitution.) 

6.  Restrictions  on  Congress. 

The  idea  of  expressly  limiting  the  legislative  powers 
of  the  Union  was  of  late  growth,  and  began  with  the 
Articles  of  Confederation,  which  make  the  consent  of 
nine  States  necessary  to  certain  acts  of  Congress. 

But  even  then  it  was  taken  for  granted  that  besides 
these  express  prohibitions  all  powers  not  expressly  given 
Congress  were  impliedly  denied.  The  Constitution  was 
framed  on  this  principle,  but  the  fears  and  caution  of 
the  people  compelled  the  adoption  of  the  ninth  and 
tenth  amendments  as  additional  safeguards,  which  de- 
clare that  the  rights  possessed  by  Congress  shall  not  be 
construed  to  disparage  others  possessed  by  the  people, 
and  that  all  powers  not  expressly  given  are  reserved  to 
the  States  or  the  people. 

••  The  United  States,  in  congress  assembled,  shall  never  engage 
in  a  war,  nor  grant  letters  of  marque  and  reprisal  in  time  of 
peace,  nor  enter  into  any  treaties  or  alliances,  nor  coin  money, 
nor  regulate  the  value  thereof,  nor  ascertain  the  sums  and  ex- 
penses necessary  for  the  defence  and  welfare  of  the  United  States, 
or  any  of  them,  nor  emit  bills,  nor  borrow  money  on  the  credit 
of  the  United  States,  nor  appropriate  money,  nor  agree  upon  the 
number  of  vessels  of  war  to  be  built  or  purchased,  or  the  number 
of  land  or  sea  forces  to  be  raised,  nor  appoint  a  commander-in- 

277 


Evolution  of  the  Constitution 

chief  of  the  army  or  navy,  unless  nine  states  assent  to  the  same  ; 
nor  shall  a  question  on  any  other  point,  except  for  adjourning 
from  day  to  day,  be  determined,  unless  by  the  votes  of  a  majority 
of  the  United  States,  in  congress  assembled."  (Articles  of  Con- 
federation, 1778.) 

'  •  But  the  congress  shall  not  declare  what  shall  be  treason 
against  the  United  States,  nor  the  punishment  of  it,  but  by  the 
voice  of  each  of  the  United  States  in  congress  ;  nor  shall  the  con- 
gress engage  in  war,  nor  enter  into  or  conclude  any  treaty  or 
alliance,  nor  ascertain  the  military  land  quota  of  the  states,  nor 
build,  furnish  or  equip  a  naval  force,  nor  rate  or  cause  a  general 
tax  to  be  levied,  nor  appoint  a  generalissimo,  nor  nominate  an 
admiralissimo,  nor  emit  or  borrow  money,  nor  grant  letters  of 
marque  and  reprisal  in  time  of  peace,  except  by  the  consent  of 
eleven  votes  in  the  congress  ;  nor  shall  the  congress  vest  any  of 
these  powers  in  the  committee  of  the  United  States  ;  nor  shall  the 
congress  exercise  any  power  but  what  is  hereby  expressly  dele- 
gated to  them."     (Drayton's  Articles  of  Confederation,  1778.) 

"The  executive  and  a  convenient  number  of  the  national 
judiciary  ought  to  compose  a  council  of  revision,  with  authority 
to  examine  every  act  of  the  national  legislature  before  it  shall 
operate,  and  the  dissent  of  the  said  council  shall  amount  to  a 
rejection  unless  the  act  of  the  national  legislature  be  again  passed. ' ' 
(Randolph's  Plan  of  1787.) 

' '  All  laws  regulating  commerce  shall  require  the  assent  of  two- 
thirds  of  the  members  present  in  each  house."  (Pinckney's  Plan 
of  1787.) 

"  The  migration  or  importation  of  such  persons  as  any  of  the 
states  now  existing  shall  think  proper  to  admit  shall  not  be  pro- 
hibited by  the  congress  prior  to  the  year  one  thousand  eight  hun- 
dred and  eight ;  but  a  tax  or  duty  may  be  imposed  on  such 
importation  not  exceeding  ten  dollars  for  each  person. 

"  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  sus- 
pended unless  when,  in  cases  of  rebellion  or  invasion,  the  public 
safety  may  require  it. 

"  No  bill  of  attainder  or  ex-post-facto  law  shall  be  passed. 

"  No  capitation  or  other  direct  tax  shall  be  laid  unless  in  pro- 
278 


Federalism  in  Detail 

portion  to  the  census  or  enumeration  hereinbefore  directed  to  be 
taken. 

"  No  tax  or  duty  shall  be  laid  on  articles  exported  from  any 
state.  No  preference  shall  be  given  by  any  regulation  of  com- 
merce or  revenue  to  the  ports  of  one  state  over  those  of  another  ; 
nor  shall  vessels  bound  to  or  from  one  state  be  obliged  to  enter, 
clear,  or  pay  duties  in  another. 

"  No  title  of  nobility  shall  be  granted  by  the  United  States." 
(The  Constitution.) 

••  The  enumeration  in  the  Constitution  of  certain  rights  shall 
not  be  construed  to  deny  or  disparage  others  retained  by  the 
people."     (Ninth  Amendment  to  the  Constitution.) 

"The  powers  not  delegated  to  the  United  States  by  the  con- 
stitution nor  prohibited  by  it  to  the  states  are  reserved  to  the 
states,  respectively,  or  to  the  people."  (Tenth  Amendment  to 
the  Constitution.) 

7.  Restrictions  on  the  States. 

Federalism  is  impossible  unless  the  uniting  States  sur- 
render some  of  their  rights.  To  persuade  them  to  such 
a  surrender  was  a  long  and  slow  process ;  yet  it  was 
seen  to  be  a  necessity  from  the  beginning,  and  in  the 
earliest  union — the  New  England  union  of  1643 — there 
is  a  slight  surrender. 

"  And  for  that  the  justest  wars  may  be  of  dangerous  conse- 
quence, especially  to  the  smaller  plantations  in  these  united  colo- 
nies, it  is  agreed  that  neither  the  Massachusetts,  Plymouth, 
Connecticut,  nor  New  Haven,  nor  any  of  the  members  of  any 
of  them,  shall,  at  any  time  hereafter,  begin,  undertake,  or  engage 
themselves  or  this  confederation,  or  any  part  thereof,  in  any  war 
whatsoever  (sudden  exigents  with  the  necessary  consequences 
thereof  excepted,  which  are  also  to  be  moderated  as  much  as  the 
case  will  permit)  without  the  consent  and  agreement  of  the  fore- 
named  eight  commissioners,  or  at  least  six  of  them,  as  in  the 
sixth  Article  is  provided  :  And  that  no  charge  be  required  of  any 

279 


Evolution  of  the  Constitution 

of  the  Confederates  in  case  of  a  defensive  war  till  the  said  Com- 
missioners have  met  and  approved  the  justice  of  the  war,  and 
have  agreed  upon  the  suip  of  money  to  be  levied,  which  sum  is 
then  to  be  paid  by  the  several  Confederates  in  proportion  accord- 
ing to  the  fourth  Article.  Nor  shall  any  other  plantation  or  juris- 
diction in  present  being,  and  not  already  in  combination  or  under 
the  jurisdiction  of  any  of  these  Confederates,  be  received  by  any 
of  them  ;  nor  shall  any  two  of  the  Confederates  join  in  one  juris- 
diction without  consent  of  the  rest,  which  consent  to  be  interpreted 
as  is  expressed  in  the  sixth  Article  ensuing."  (New  England 
Union  of  1643.) 

' '  But  no  colony  shall  be  at  liberty  to  declare  war  against  any 
enemy,  or  to  begin  any  hostilities,  except  they  have  the  direction 
and  allowance  of  the  president  and  council."  (Hutchinson's 
Plan,  1754.) 

"  No  colony  shall  engage  in  an  offensive  war  with  any  nation 
of  Indians  without  the  consent  of  the  congress,  or  grand  coun- 
cil above  mentioned,  who  are  first  to  consider  the  justice  and 
necessity  of  such  wa.r."     (Franklin's  Articles  of  Confederation, 

I775-) 

"No  state,  without  the  consent  of  the  United  States,  in  con- 
gress assembled,  shall  send  any  embassy  to,  or  receive  any  em- 
bassy from,  or  enter  into  any  conference,  agreement,  alliance,  or 
treaty,  with  any  king,  prince,  or  state  ;  nor  shall  any  person  hold- 
ing any  office  of  profit  or  trust  under  the  United  States,  or  any 
of  them,  accept  of  any  present,  emolument,  office,  or  title  of  any 
kind  whatever,  from  any  king,  prince,  or  foreign  state  ;  nor  shall 
the  United  States,  in  congress  assembled,  or  any  of  them,  grant 
any  title  of  nobility. 

• '  No  two  or  more  states  shall  enter  into  any  treaty,  confedera- 
tion, or  alliance  whatever,  between  them,  without  the  consent  of 
the  United  States,  in  congress  assembled,  specifying  accurately 
the  purposes  for  which  the  same  is  to  be  entered  into,  and  how 
long  it  shall  continue. 

'  •  No  state  shall  lay  any  imposts  or  duties  which  may  interfere 
with  any  stipulations  in  treaties,  entered  into  by  the  United  States, 
in  congress  assembled,  with  any  king,  prince,  or  state,  in  pursu- 

280 


Federalism  in  Detail 

ance  of  any  treaties  already  proposed  by  congress  to  the  courts 
of  France  and  Spain. 

"  No  vessels  of  war  shall  be  kept  up  in  time  of  peace,  by  any 
state,  except  such  number  only  as  shall  be  deemed  necessary, 
by  the  United  States,  in  congress  assembled,  for  the  defence  of 
such  state  or  its  trade  ;  nor  shall  any  body  of  forces  be  kept  up, 
by  any  state,  in  time  of  peace,  except  such  number  only  as,  in 
the  judgment  of  the  United  States,  in  congress  assembled,  shall 
be  deemed  requisite  to  garrison  the  forts  necessary  for  the  defence 
of  such  state  ;  but  every  state  shall  always  keep  up  a  well-regu- 
lated and  disciplined  militia,  sufficiently  armed  and  accoutred, 
and  shall  provide  and  constantly  have  ready  for  use,  in  public 
stores,  a  due  number  of  field-pieces  and  tents,  and  a  proper 
quantity  of  arms,  ammunition,  and  camp-equipage. 

"  No  state  shall  engage  in  any  war  without  the  consent  of  the 
United  States,  in  congress  assembled,  unless  such  state  be  act- 
ually invaded  by  enemies,  or  shall  have  received  certain  advice 
of  a  resolution  being  formed  by  some  nation  of  Indians  to  in- 
vade such  state,  and  the  danger  is  so  imminent  as  not  to 
admit  of  a  delay  till  the  United  States,  in  congress  assembled, 
can  be  consulted ;  nor  shall  any  state  grant  commissions  to 
any  ships  or  vessels  of  war,  nor  letters  of  marque  or  reprisal, 
except  it  be  after  a  declaration  of  war  by  the  United  States,  in 
congress  assembled,  and  then  only  against  the  kingdom  or 
state,  and  the  subjects  thereof,  against  which  war  has  been  so 
declared,  and  under  such  regulations  as  shall  be  established  by 
the  United  States,  in  congress  assembled,  unless  such  state  be 
infested  by  pirates,  in  which  case  vessels  of  war  may  be  fitted  out 
for  that  occasion,  and  kept  so  long  as  the  danger  shall  continue, 
or  until  the  United  States,  in  congress  assembled,  shall  determine 
otherwise. 

"  Every  state  shall  abide  by  the  determinadons  of  the  United 
States,  in  congress  assembled,  on  all  questions  which,  by  this 
confederation,  are  submitted  to  them.  And  the  articles  of  this 
confederation  shall  be  inviolably  observed  by  every  state,  and 
the  Union  shall  be  perpetual."     (Articles  of  Confederation,  1778.) 

"Any  state  neglecting  to  have  a  representation  in  congress  shall 
281 


Evolution  of  the  Constitution 

nevertheless  be  bound  by  the  act  of  congress  as  if  its  representa- 
tion  was  present. 

' '  Provided  that  such  restrictions  [by  one  state  on  citizens  of 
another  state]  shall  not  extend  to  defeat  the  articles  of  this  con- 
federation or  any  part  thereof.  Provided,  also,  that  no  duty,  im- 
position, or  restriction  shall  be  laid  by  any  state  on  the  property  of 
the  United  States,  or  of  the  government,  in  either  of  them,  except 
in  cases  of  embargo. 

"  No  state  shall  lay  or  allow  to  continue  any  prohibition,  impost, 
or  duty  which  may  interfere  with  any  treaty  which  shall  be  made 
by  the  congress  with  any  foreign  power  ;  no  state  shall  engage  in 
any  war  without  the  consent  of  the  congress  unless  such  state  be 
actually  invaded  by  an  enemy  or  shall  have  received  certain  in- 
telligence of  such  hostile  design  formed  by  some  nation  of  Indians 
and  the  danger  is  so  imminent  as  not  to  admit  of  a  delay  ;  no 
state  shall  grant  letters  of  marque  and  reprisal  but  after  a  decla- 
ration of  war  by  the  congress,  and  then  only  against  the  power 
against  whom  the  war  has  been  so  declared,  except  such  state  be 
infested  by  piracies,  in  which  case  vessels  of  war  may  be  fitted 
out  by  that  state  for  the  occasion  only  ;  no  state  shall  enter  into 
any  conference,  agreement,  treaty,  or  alliance  with  any  king, 
prince,  or  foreign  states  ;  nor  shall  any  person  holding  any  office 
under  the  United  States,  or  under  an}»  of  them,  accept  of  any 
present,  emolument,  office,  or  title  from  any  king  or  foreign  state 
without  being  thereby  absolutely  rendered  forever  incapable  of 
any  public  trust  under  the  United  States,  or  any  of  them  ;  nor 
shall  any  of  these  states  grant  any  title  of  nobility. 

' '  No  state  shall  exercise  any  power  hereby  delegated  to  the 
congress."     (Drayton's  Articles  of  Confederation,  1778.) 

"  The  national  legislature  ought  to  be  empowered  to  negative 
all  laws  passed  by  the  several  states  contravening,  in  the  opinion 
of  the  national  legislature,  the  articles  of  union  or  any  treaty 
subsisting  under  the  authority  of  the  union,  and  to  call  forth  the 
force  of  the  union  against  any  member  of  the  union  faihng  to  fulfil 
its  duty  under  the  articles  thereof. 

"The  executive  and  a  convenient  number  of  the  national 
judiciary  ought  to  compose  a  council  of  revision,  with  authority 

282 


Federalism  in  Detail 

to  examine  every  act  of  a  particular  legislature  before  a  negative 
thereon  shall  be  final,  and  the  dissent  of  the  said  council  shall 
amount  to  a  rejection  unless  the  act  of  the  particular  legislature 
be  again  negatived  by  of  the  number  of  each  branch." 

(Randolph's  Plan,  1787.) 

"  No  state  shall  grant  letters  of  marque  and  reprisal,  or  enter 
into  treaty,  or  alliance,  or  confederation  ;  nor  grant  any  title  of 
nobility  ;  nor,  without  the  consent  of  the  legislature  of  the  United 
States,  lay  any  impost  on  imports  ;  nor  keep  troops  or  ships  of 
war  in  time  of  peace  ;  nor  enter  into  compacts  with  other  states  or 
foreign  powers  ;  nor  emit  bills  of  credit ;  nor  make  anything  but 
gold,  silver,  or  copper  a  tender  in  payment  of  debts  ;  nor  engage 
in  war,  except  for  self-defence  when  actually  invaded  or  the  dan- 
ger of  invasion  be  so  great  as  not  to  admit  of  a  delay  until  the 
government  of  the  United  States  can  be  informed  thereof.  And, 
to  render  these  prohibitions  effectual,  the  legislature  of  the  United 
States  shall  have  the  power  to  revise  the  laws  of  the  several  states 
that  may  be  supposed  to  infringe  the  powers  exclusively  delegated 
by  this  constitution  to  congress,  and  to  negative  and  annul  such 
as  do."     (Pinckney's  Plan,  1787.) 

"No  state  shall  enter  into  any  treaty,  alliance,  or  confedera- 
tion ;  grant  letters  of  marque  and  reprisal,  coin  money,  emit  bills 
of  credit,  make  anything  hut  gold  and  silver  coin  a  tender  in  pay- 
ment of  debts,  pass  any  bill  of  attainder,  ex-post-facto  law,  or  law 
impairing  the  obligation  of  contracts,  or  grant  any  title  of  nobility. 

"  No  state  shall,  without  the  consent  of  the  congress,  lay  any 
imposts  or  duties  on  imports  or  exports  except  what  may  be  abso- 
lutely necessary  for  executing  its  inspection  laws,  and  the  net 
produce  of  all  duties  and  imposts  laid  by  any  state  on  imports  or 
exports  shall  be  for  the  use  of  the  treasury  of  the  United  States, 
and  all  such  laws  shall  be  subject  to  the  revision  and  control  of 
the  congress.  No  state  shall,  without  the  consent  of  congress, 
lay  any  duty  of  tonnage,  keep  troops  or  ships  of  war  in  time  of 
peace,  enter  into  any  agreement  or  compact  with  another  state  or 
with  a  foreign  power,  or  engage  in  war,  unless  actually  invaded, 
or  in  such  imminent  danger  as  will  not  admit  of  delay."  (The 
Constitution.) 

283 


Evolution  of  the  Constitution 

8.  State  Sovereignty. 
While  it  is  essential  to  federalism  that  the  uniting 
States  should  surrender  some  of  their  rights,  it  is  equally 
essential  that  they  should  preserve  their  remaining  rights. 
Only  in  this  way  can  the  ideal  of  federalism  be  attained, 
— an  indestructible  union  of  indestructible  States.  As 
we  have  shown  in  the  preceding  section,  the  first  at- 
tempt at  union — the  New  England  union  of  1643 — con- 
tained a  slight  surrender  of  State  rights.  It  also  con- 
tained a  guarantee  that  the  remaining  State  rights  should 
be  inviolably  preserved.  These  two  counterpoising  es- 
sentials of  our  system  appeared  at  the  very  beginning, 
at  the  same  time,  and  in  the  same  document  Ameri- 
can federalism,  at  its  first  appearance  in  the  year  1643, 
contained  that  foundation  principle  without  which  it 
cannot  be  preserved. 

"  It  is  further  agreed  that  the  Plantations  which  at  present  are, 
cr  hereafter  shall  be,  settled  within  the  limits  of  the  Massachu- 
setts, shall  be  forever  under  the  Massachusetts,  and  shall  have 
peculiar  jurisdiction  among  themselves  in  all  cases  as  an  entire 
body;  and  that  Plymouth,  Connecticut,  and  New  Haven  shall 
each  of  them  have  like  peculiar  jurisdiction  and  government 
within  their  limits,  and  in  reference  to  the  Plantations  which 
already  are  settled,  or  shall  hereafter  be  erected,  or  shall  settle 
within  their  limits  respectively  :  provided,  that  no  other  jurisdic- 
tion shall  hereafter  be  taken  in  as  a  distinct  head  or  member  of 
this  confederation  ;  nor  shall  any  other  Plantation  or  jurisdiction 
in  present  being,  and  not  already  in  combination  or  under  the 
jurisdiction  of  any  of  these  Confederates,  be  received  by  any  of 
them  ;  nor  shall  any  two  of  the  Confederates  join  in  one  jurisdic- 
tion without  consent  of  the  rest,  which  consent  to  be  interpreted 
as  is  expressed  in  the  sixth  article  ensuing."  (New  England 
Union  of  1643.) 

284 


Federalism  in  Detail 

"That  this  general  council  do  not  meddle  with  or  alter  the 
manner  of  government  in  any  province,  but  that  the  said  general 
council  may  send  advice  to  the  assembly  of  any  province  touch- 
ing any  matter  which  they  conceive  may  be  to  the  advantage  of 
the  province."     (Lord  Stair's  Plan,  1721.) 

"  The  quota  or  proportion,  as  above  allotted  and  charged  on 
each  colony,  may,  nevertheless,  be  levied  and  raised  by  its  own 
assembly  in  such  manner  as  they  shall  judge  most  easy  and  con- 
venient and  the  circumstances  of  their  affairs  will  permit." 
(Daniel  Coxe's  Plan,  1722.) 

"  Each  colony  may  retain  its  present  constitution  except  in  the 
particulars  wherein  a  change  may  be  directed  by  the  said  act  as 
hereafter  follows. ' ' 

' '  But  they  shall  not  impress  men  in  any  colony  without  the 
consent  of  its  legislature."     (Franklin's  Plan  of  1754.) 

• '  The  president  and  council  shall  not  have  power  to  impress 
men  in  any  colony  without  the  consent  of  its  legislature." 
(Hutchinson's  Plan,  1754.) 

• '  That  a  British  and  American  legislature,  for  regulating  the 
administration  of  the  general  affairs  of  America,  be  proposed  and 
estabHshed  in  America,  including  all  the  said  colonies,  within  and 
under  which  government  each  colony  shall  retain  its  present  con- 
stitution and  powers  of  regulating  and  governing  its  own  internal 
police  in  all  cases  whatever."     (Galloway's  Plan,  1774.) 

"  That  each  colony  shall  enjoy  and  retain  as  much  as  it  may 
think  fit  of  its  own  present  laws,  customs,  rights,  privileges,  and 
peculiar  jurisdictions  within  its  own  limits  ;  and  may  amend  its 
own  constitution,  as  shall  seem  best  to  its  own  assembly  or  con- 
vention."    (Franklin's  Articles  of  Confederation,  1775.) 

"  Elach  state  retains  its  sovereignty,  freedom,  and  indepen- 
dence, and  every  power,  jurisdiction,  and  right,  which  is  not  by 
this  confederation  expressly  delegated  to  the  United  States  in 
congress  assembled. 

• '  When  land  forces  are  raised  by  any  state  for  the  common 
defence,  all  officers  of  or  under  the  rank  of  colonel  shall  be  ap- 
pointed by  the  legislature  of  each  state  respectively  by  whom 
such  forces  shall  be  raised,  or  in  such  manner  as  such  state  shall 

285 


Evolution  of  the  Constitution 

direct,  and  all  vacancies  shall  be  filled  up  by  the  state  which  first 
made  the  appointment. 

'  •  The  taxes  for  paying  that  proportion  [of  the  common  fund 
for  the  general  welfare]  shall  be  laid  and  levied  by  the  authority 
and  direction  of  the  legislatures  of  the  several  states  within  the 
time  agreed  upon  by  the  United  States. 

"Provided  that  no  treaty  of  commerce  shall  be  made  [by 
the  United  States  in  congress  assembled]  whereby  the  legislative 
power  of  the  respective  states  shall  be  restrained  from  imposing 
such  imposts  and  duties  on  foreigners  as  their  own  people  are 
subjected  to,  or  from  prohibiting  the  exportation  or  importation 
of  any  species  of  goods  or  commodities. 

' '  No  state  shall  be  deprived  of  territory  for  the  benefit  of  the 
United  States. 

"The  United  States,  in  congress  assembled,  shall  also  have 
the  sole  and  exclusive  right  and  power  of  regulating  the  trade  and 
managing  all  affairs  with  the  Indians  not  members  of  any  of  the 
states ;  provided  that  the  legislative  right  of  any  state,  within 
its  own  limits,  be  not  infringed  or  violated."  (Articles  of  Con- 
federation, 1778.) 

"But  it  is  declared  the  several  states  do  possess  and  enjoy 
all  those  natural  rights  and  powers  of  sovereignty  not  by  this  act 
delegated.  And  it  is  also  declared  that  whenever  the  congress 
shall  cease  to  observe  these  articles  of  confederation  the  several 
states  shall  be  at  liberty  to  declare  themselves  absolved  from  all 
obedience  to  that  government."  (Drayton's  Articles  of  Confed- 
eration, 1778.) 

"That  the  territory  of  each  state  ought  to  be  guaranteed  by 
the  United  States  to  each  state."     (Randolph's  Plan,  1787.) 

"No  tax  or  duty  shall  be  laid  on  articles  exported  from  any 
state.  No  preference  shall  be  given  by  any  regulation  of  com- 
merce or  revenue  to  the  ports  of  one  state  over  those  of  another  ; 
nor  shall  vessels  bound  to  or  from  one  state  be  obliged  to  enter, 
clear,  or  pay  duties  in  another. 

"  No  new  state  shall  be  formed  or  erected  within  the  jurisdic- 
tion of  any  other  state;  nor  any  state  be  formed  by  the  junction 
of  two  or  more  states,  or  parts  of  states,  without  the  consent  of 

286 


Federalism  in  Detail 

the  legislatures  of  the  states  concerned  as  well  as  of  the  con- 
gress."    (The  Constitution.) 

'  •  The  powers  not  delegated  to  the  United  States  by  the  con- 
stitution nor  prohibited  by  it  to  the  states  are  reserved  to  the 
states  respectively,  or  to  the  people."  (Tenth  Amendment  to 
the  Constitution.) 

9.  Raising  Money  and  Taxation. 

"  It  is  by  these  confederates  agreed  that  the  charge  of  all  just 
wars,  whether  offensive  or  defensive,  upon  what  part  or  member 
of  this  confederation  soever  they  fall,  shall,  both  in  men  and  pro- 
visions, and  all  other  disbursements,  be  borne  by  all  the  parts 
of  this  confederation,  in  different  proportions  according  to  their 
different  ability,  in  manner  following,  namely,  that  the  commis- 
sioners for  each  jurisdiction  from  time  to  time,  as  there  shall  be 
occasion,  bring  a  true  account  and  number  of  all  the  males  in 
every  plantation,  or  any  way  belonging  to  or  under  their  several 
jurisdictions,  of  what  quality  or  condition  soever  they  be,  from 
sixteen  years  old  to  threescore,  being  inhabitants  there.  And 
that  according  to  the  different  numbers  which  from  time  to  time 
shall  be  found  in  each  jurisdiction,  upon  a  true  and  just  account, 
the  service  of  men  and  all  charges  of  the  war  be  borne  by  the 
poll ;  each  jurisdiction  or  plantation  being  left  to  their  own  just 
course  and  custom  of  rating  themselves  and  people  according  to 
their  different  estates,  with  due  respects  to  their  qualities  and 
exemptions  among  themselves,  though  the  confederation  take  no 
notice  of  any  such  privilege  ;  and  that  according  to  their  different 
charge  of  each  jurisdiction  and  plantation,  the  whole  advantage 
of  the  war  (if  it  please  God  to  bless  their  endeavors),  whether  it  be 
in  lands,  goods  or  persons,  shall  be  proportionably  divided  among 
the  said  confederates."     (New  England  Union  of  1643.) 

"That  the  general  council,  with  the  captain-general,  have 
power  to  allot  the  portion  of  men  and  money  (or  money  and  men) 
which  shall  be  the  appointment  of  eacJi  province,  to  be  fixed  in 
gross,  and  the  assembly  of  the  province  to  direct  by  a  law  the 
ways  of  raising  it."     (Lord  Stair's  Plan  of  1721.) 

2S7 


Evolution  of  the  Constitution 

"That  for  these  purposes  they  have  power  to  make  laws  and 
lay  and  levy  such  general  duties,  imposts,  or  taxes,  as  to  them 
shall  appear  most  equal  and  just,  considering  the  ability  and 
other  circumstances  of  the  inhabitants  in  the  several  colonies,  and 
such  as  may  be  collected  with  the  least  inconvenience  to  the  peo- 
ple, rather  discouraging  luxury  than  loading  industry  with  unneces- 
sary burdens."     (Franklin's  Plan  of  1754.) 

"And  in  order  to  raise  moneys  sufficient  for  these  pur- 
poses : 

' '  That  the  said  president  and  council  be  empowered  to  lay 
general  duty  on  wines  and  spirituous  liquors  or  other  luxurious 
consumptions  as  shall  appear  to  them  just  and  equal  on  the 
several  colonies,  each  colony  to  pay  in  proportion  to  their  mem- 
bers ;  and  if  it  shall  appear  that  the  sum  raised  by  any  colony  fall 
short  of  such  proportion  and  the  deficiency  shall  not  forthwith  be 
paid  by  such  colony,  then  and  as  oft  as  it  shall  so  happen  the 
said  president  and  council  shall  have  power  to  lay  additional  duty 
on  such  colony  until  the  deficiency  be  made  good  ;  and  if  the  sum 
raised  from  any  colony  shall  exceed  its  proportion,  the  surplus 
shall  remain  or  be  paid  into  the  general  treasury  of  such  colony. 
And  the  accounts  of  the  deposition  of  all  moneys  raised  shall  be 
annually  settled,  that  the  members  of  the  council  may  make 
report  of  the  same  to  the  respective  assemblies. 

' '  That  the  president  and  council  shall  appoint  officers  for  col- 
lecting all  such  duties  as  shall  be  agreed  on,  and  all  laws  and 
orders  for  enforcing  the  payment  thereof  in  any  and  every  colony, 
and  also  all  laws  and  orders  for  restraining  supplies  to,  and  com- 
munication with,  his  Majesty's  enemies,  whether  by  flags  of 
truce  or  in  any  other  manner,  shall  be  as  fully  and  effectively 
observed  and  executed  as  if  they  had  been  the  laws  of  that  par- 
ticular colony  where  any  offence  shall  be  committed,  and  all 
offences  against  such  laws  and  orders  shall  be  tried  and  deter- 
mined accordingly."     (Hutchinson's  Plan,  1754.) 

"All  charges  of  wars,  and  all  other  general  expenses  to  be 
incurred  for  the  common^welfare,  shall  be  defrayed  out  of  a  com- 
mon treasury,  which  is  to  be  supplied  by  each  colony  in  propor- 
tion to  its  number  of  male  polls  between  sixteen  and  sixty  years 

288 


Federalism  in  Detail 

of  age.  The  taxes  for  paying  that  proportion  are  to  be  laid  and 
levied  by  the  laws  of  each  colony."  (Franklin's  Articles  of  Con- 
federation, 1775.) 

"All  charges  of  war,  and  all  other  expenses  that  shall  be 
incurred  for  the  common  defence  or  general  welfare  and  allowed 
by  the  United  States,  in  congress  assembled,  shall  be  defrayed 
out  of  a  common  treasury,  which  shall  be  supplied  by  the  several 
states,  in  proportion  to  the  value  of  all  land  within  each  state, 
granted  to,  or  surveyed  for,  any  person,  as  such  land  and  the 
buildings  and  improvements  thereon  shall  be  estimated,  accord- 
ing to  such  mode  as  the  United  States,  in  congress  assembled, 
shall  from  time  to  time  direct  and  appoint.  The  taxes  for  paying 
that  proportion  shall  be  laid  and  levied  by  the  authority  and  direc- 
tion of  the  legislatures  of  the  several  states,  within  the  time  agreed 
upon  by  the  United  States,  in  congress  assembled. ' '  (Articles  of 
Confederation,  1778.) 

' '  The  congress  shall  have  the  sole  power  of  rating  and  causing 
taxes  to  be  levied  throughout  the  United  States  for  the  service  of 
the  confederacy."     (Drayton's  Articles  of  Confederation,  1778.) 

' '  The  legislature  of  the  United  States  shall  have  power  to  lay 
and  collect  taxes,  duties,  imposts,  and  excises."  (Pinckney's 
Plan,  1787.) 

"  The  proportion  of  direct  taxation  shall  be  regulated  by  the 
whole  number  of  inhabitants  of  every  description,  which  number 
shall,  within  years  after  the  first  meeting  of  the  legislature 

and  within  the  term  of  every  year  after,  be  taken  in  the 

manner  to  be  prescribed  by  the  legislature. 

' '  No  tax  shall  be  laid  on  articles  exported  from  the  states  ;  nor 
capitation  tax,  but  in  proportion  to  the  census  before  directed." 
(Pinckney's  Plan,  1787.) 

"The  congress  shall  have  power  to  lay  and  collect  taxes, 
duties,  imposts,  and  excises,  to  pay  the  debts  and  provide  for  the 
common  defence  and  general  welfare  of  the  United  States  ;  but  all 
duties,  imposts,  and  excises  shall  be  uniform  throughout  the 
United  States.  No  capitation  or  other  direct  tax  shall  be  laid 
unless  in  proportibn  to  the  census  or  enumeration  hereinbefore 
directed  to  be  taken."  (The  Constitution.) 
19  289 


Evolution  of  the  Constitution 
lo.  Intercourse  between  the  States. 

"It  is  also  agreed  that  the  commissioners  for  this  confedera- 
tion hereafter  at  their  meetings,  whether  ordinary  or  extraordi- 
nary, as  they  may  have  commission  or  opportunity,  do  endeavor 
to  frame  and  establish  agreements  and  orders  in  general  cases  of 
a  civil  nature  wherein  all  the  plantations  are  interested  for  pre- 
serving peace  among  themselves,  and  preventing  as  much  as 
may  be  all  occasions  of  war  or  difference  with  others,  as  about 
the  free  and  speedy  passage  of  justice  in  every  jurisdiction  to  all 
the  confederates  equally  as  their  own,  receiving  those  that  re- 
move from  one  plantation  to  another  without  due  certificates  ; 
how  all  the  jurisdictions  may  carry  it  towards  the  Indians,  that 
they  neither  grow  insolent  nor  be  injured  without  due  satisfaction, 
lest  war  break  in  upon  the  confederates  through  such  miscarriage. 
It  is  also  agreed  that  if  any  servant  run  away  from  his  master  into 
any  other  of  these  confederated  jurisdictions,  that,  in  such  case, 
upon  the  certificate  of  one  magistrate  in  the  jurisdiction  out  of 
which  the  said  servant  fled,  or  upon  other  due  proof,  the  said 
servant  shall  be  delivered  either  to  his  master  or  any  other  that 
pursues  and  brings  such  certificate  or  proof.  And  that  upon  the 
escape  of  any  prisoner  whatsoever  or  fugitive  for  any  criminal 
cause,  whether  breaking  prison  or  getting  from  the  officer  or 
otherwise  escaping,  upon  the  certificate  of  two  magistrates  of  the 
jurisdiction  out  of  which  the  escape  is  made  that  he  was  a  pris- 
oner or  such  an  offender  at  the  time  of  the  escape,  the  magis- 
trates, or  some  of  them  of  that  jurisdiction  where  for  the  present 
the  said  prisoner  or  fugitive  abideth,  shall  forthwith  grant  such  a 
warrant  as  the  case  will  bear  for  the  apprehending  of  any  such 
person,  and  the  delivery  of  him  into  the  hands  of  the  officer  or 
other  person  that  pursues  him.  And  if  there  be  help  required  for 
the  safe  returning  of  such  offender,  then  it  shall  be  granted  to 
him  that  craves  the  same,  he  paying  the  charges  thereof. ' '  (New 
England  Union  of  1643.) 

"That  their  business  shall  be  to  hear  and  adjust  all  matters 
of  complaint  or  differences  between  province  and  province, — as, 
1st,  where  persons  quit  their  own  province  and  go  to  another  that 

290 


Federalism  in  Detail 

they  may  avoid  their  just  debts,  though  they  be  able  to  pay  them ; 
2d,  where  offenders  fly  justice  or  justice  cannot  well  be  had  upon 
such  offenders  in  the  provinces  that  entertain  them."  (Penn's 
Plan  of  Union,  1696.) 

"  The  better  to  secure  and  perpetuate  mutual  friendship  and 
intercourse  among  the  people  of  the  different  states  in  this  union, 
the  free  inhabitants  of  each  of  these  states,  paupers,  vagabonds, 
and  fugitives  from  justice  excepted,  shall  be  entitled  to  all  privi- 
leges and  immunities  of  free  citizens  in  the  several  states ;  and 
the  people  of  each  state  shall  have  free  ingress  and  regress  to 
and  from  any  other  state,  and  shall  enjoy  therein  all  the  privi- 
leges of  trade  and  commerce,  subject  to  the  same  duties,  impo- 
sitions, and  restrictions  as  the  inhabitants  thereof  respectively ; 
provided  that  such  restrictions  shall  not  extend  so  far  as  to  pre- 
vent the  removal  of  property  imported  into  any  state  to  any 
other  state,  of  which  the  owner  is  an  inhabitant ;  provided,  also, 
that  no  imposition,  duties,  or  restriction  shall  be  laid  by  any  state 
on  the  property  of  the  United  States,  or  either  of  them. 

"  If  any  person  guilty  of,  or  charged  with,  treason,  felony,  or 
other  high  misdemeanor  in  any  state  shall  flee  from  justice  and 
be  found  in  any  of  the  United  States,  he  shall,  upon  demand  of 
the  governor  or  executive  power  of  the  state  from  which  he  fled, 
be  delivered  up,  and  removed  to  the  state  having  jurisdiction  of 
his  offence. 

"Full  faith  and  credit  shall  be  given,  in  each  of  these  states, 
to  the  records,  acts,  and  judicial  proceedings  of  the  courts  and 
magistrates  of  every  other  state."  (Articles  of  Confederation, 
1778.) 

"There  shall  be  a  mutual  friendship  and  intercourse  among 
the  people  of  the  several  states  in  this  union  ;  the  free  white  in- 
habitants of  each  of  these  states  (those  who  refuse  to  take  up 
arms  in  defence  of  the  confederacy,  paupers,  vagabonds,  and 
fiigitives  from  justice  excepted)  shall  be  entitled  to  all  privileges 
and  immunities  of  free  citizens  in  the  several  states,  according  to 
the  laws  of  such  state  respectively,  for  the  government  of  their 
own  free  white  inhabitants,  having  uninterrupted  ingress  and  re- 
gress, together  with  their  property,  to  and  from  any  other  of  the 

291 


Evolution  of  the  Constitution 

United  States,  subject,  nevertheless,  to  the  duties,  impositions, 
and  restrictions  as  the  inhabitants  thereof  respectively. 

"If  any  person  charged  with,  or  guilty  of,  treason,  felony,  or 
other  high  misdemeanors,  in  any  of  the  respective  states,  shall 
flee  from  justice,  and  be  found  in  any  of  the  states,  upon  the  de- 
mand of  the  executive  power  in  the  state  from  which  he  fled,  he 
shall  be  delivered  up  and  removed  to  the  state  having  jurisdic- 
tion of  the  offence,  that  state  defraying  the  expense  of  the  re- 
moval. And  full  faith  and  credit  shall  be  given  throughout  the 
United  States  to  the  acts,  records,  and  judicial  proceedings  of  the 
courts  and  magistrates  in  each."  (Drayton's  Articles  of  Con- 
federation, 1778.) 

"  The  citizens  of  each  state  shall  be  entitled  to  all  privileges  and 
immunities  of  citizens  in  the  several  states.  Any  person,  charged 
with  crimes  in  any  state,  fleeing  from  justice  to  another,  shall,  on 
demand  of  the  executive  of  the  state  from  which  he  fled,  be  delivered 
up  and  removed  to  the  state  having  jurisdiction  of  the  offence. 

"  Full  faith  shall  be  given,  in  each  state,  to  the  acts  of  the 
legislature,  and  to  the  records  and  judicial  proceedings  of  the 
courts  and  magistrates  of  every  state."     (Pinckney's  Plan,  1787.) 

"  Full  faith  and  credit  shall  be  given  in  each  state  to  the  pub- 
lic acts,  records,  and  judicial  proceedings  of  every  other  state. 
And  the  congress  may,  by  general  laws,  prescribe  the  manner 
in  which  such  acts,  records,  and  proceedings  shall  be  proved, 
and  the  effect  thereof. 

* '  The  citizens  of  each  state  shall  be  entitled  to  all  privileges 
and  immunities  of  citizens  in  the  several  states. 

"A  person  charged  in  any  state  with  treason,  felony,  or  other 
crime,  who  shall  flee  from  justice,  and  be  found  in  another  state, 
shall,  on  demand  of  the  executive  authority  of  the  state  from 
which  he  fled,  be  delivered  up,  to  be  removed  to  the  state  having 
jurisdiction  of  the  crime. 

"No  person  held  to  service  or  labor  in  one  state,  under  the 
laws  thereof,  escaping  into  another,  shall,  in  consequence  of  any 
law  or  regulation  therein,  be  discharged  from  such  service  or 
labor,  but  shall  be  delivered  up  on  claim  of  the  party  to  whom 
such  service  or  labor  may  be  due."     (The  Constitution.) 

292 


Federalism  in  Detail 
II.  Regulation  of  Commerce. 

"3rd,  to  prevent  injuries  in  point  of  commerce."  (Penn's 
Plan  of  Union,  1696.) 

•  •  That  the  president-general,  with  the  advice  of  the  gjrand 
council,  make  such  laws  as  they  judge  necessary  for  regulating 
all  Indian  trade."     (Franklin's  Plan  of  1754.) 

"The  president,  by  the  advice  of  the  council,  shall  have  the 
sole  power  of  restraining  and  regulating  all  Indian  trade  by  laws 
and  orders,  with  penalties  annexed  not  extending  to  life  and  limb  ; 
all  offences  against  such  laws  or  orders  to  be  tried  and  deter- 
mined within  the  government  where  the  offence  shall  be  com- 
mitted, according  to  the  course  of  judicial  proceeding  in  such 
government,  in  like  manner  as  if  such  offence  had  been  com- 
mitted against  the  laws  of  such  colony,  and  any  offence  that  may 
be  committed  in  any  parts  that  shall  not  be  within  the  certain 
bounds  of  any  colony  shall  and  may  be  tried  and  determined  in 
the  colony  where  the  offender  shall  be  taken."  (Hutchinson's 
Plan,  1754.) 

"The  congress  shall  also  make  such  general  ordinances  as 
may  relate  to  our  general  commerce."  (Franklin's  Articles  of 
Confederation,  1775.) 

"The  United  States,  in  congress  assembled,  shall  also  have 
the  sole  and  exclusive  right  and  power  of  regulating  the  trade 
and  managing  all  affairs  with  the  Indians  not  members  of  any 
of  the  states  ;  provided  that  the  legislative  right  of  any  state, 
within  its  own  limits,  be  not  infringed  or  violated."  (Articles  of 
Confederation,  1778.) 

"The  congress  shall  have  the  sole  power  of  regulating  the 
affairs  and  trade  of  the  Indians  not  members  of  any  state." 
(Drayton's  Articles  of  Confederation,  1778.) 

"  The  legislature  of  the  United  States  shall  have  the  power  to 
regulate  commerce  with  all  nations  and  among  the  several  states." 
(Pinckney's  Plan,  1787.) 

"The  congress  shall  have  power  to  regulate  commerce  with 
foreign  nations  and  among  the  several  states  and  with  the  Indian 
tribes."     (The  Constitution.) 

293 


Evolution  of  the  Constitution 
12.  Sending  and  Receiving  Ambassadors. 

"That  the  power  and  duty  of  congress  shall  extend  to  the 
sending  and  receiving  ambassadors."  (Franklin's  Articles  of 
Confederation,  1775.) 

"The  United  States,  in  congress  assembled,  shall  have  the 
sole  and  exclusive  right  and  povi^er  of  sending  and  receiving  am- 
bassadors."    (Articles  of  Confederation,  1778.) 

"  The  congress  shall  have  sole  power  of  sending  ambassadors 
to,  and  receiving  therefrom,  foreign  princes  and  states."  (Dray- 
ton's Articles  of  Confederation,  1778.) 

' '  The  senate  shall  have  the  sole  and  exclusive  power  to  ap- 
point ambassadors  and  other  ministers  to  foreign  nations. 

"  He  [the  President]  shall  receive  public  ministers  from  foreign 
nations,  and  may  correspond  with  the  executives  of  the  different 
states."     (Pinckney's  Plan,  1787.) 

"  He  [the  President]  shall  nominate,  and,  by  and  with  the 
advice  of  the  senate,  shall  appoint  ambassadors  and  other  public 
ministers. 

"  He  shall  receive  ambassadors  and  other  public  ministers." 
(The  Constitution.) 

13.  Captures. 

"The  United  States,  in  congress  assembled,  shall  have  the 
sole  and  exclusive  right  and  power  of  establishing  rules  for  de- 
ciding in  all  cases  what  captures  on  land  or  water  shall  be  legal, 
and  in  what  manner  prizes  taken  by  land  or  naval  forces  in  the 
service  of  the  United  States  shall  be  divided  or  appropriated." 
(Articles  of  Confederation,  1778.) 

"The  congress  shall  have  the  sole  power  of  declaring  what 
captures  on  land  and  on  water  shall  be  legal,  and  in  what  manner 
such  captures,  by  the  land  and  naval  forces  in  the  service  of  the 
United  States,  shall  be  divided  and  appropriated."  (Drayton's 
Articles  of  Confederation,  1778.) 

"The  legislature  of  the  United  States  shall  have  the  power  to 
make  rules  concerning  captures  from  an  enemy."  (Pinckney's 
Plan,  1787.) 

294 


Federalism  in  Detail 

"The  congress  shall  have  power  to  make  rules  concerning 
captures  on  land  and  water."     (The  Constitution.) 

14.  The  Judiciary. 
The  New  England  union  of  1643  contemplated 
nothing  more  than  a  legislative  department,  which  was 
to  exercise  all  the  powers  of  the  Union.  Penn's  plan 
of  1696  added  an  executive,  and  subsequent  plans 
down  to  the  time  of  the  Revolution  were  usually  based 
on  those  two  departments,  which,  however,  were  not 
always  entirely  distinct  from  each  other.  A  judicial 
department  was  never  mentioned,  because  the  plans  and 
the  situation  were  not  sufficiently  complex  to  require 
the  function  of  regularly  organized  government.  It  was 
not  until  the  time  of  the  Articles  of  Confederation  of 
1778  that  the  judicial  power  was  cautiously  introduced, 
and  confined  at  first  to  piracies  and  felonies  on  the 
high  seas  and  cases  of  capture. 

"  The  United  States,  in  congress  assembled,  shall  have  the 
sole  and  exclusive  right  and  power  of  appointing  courts  for  the 
trial  of  piracies  and  felonies  committed  on  the  high  seas  ;  [and] 
courts  for  receiving  and  determining  finally  appeals  in  all  cases 
of  captures."     (Articles  of  Confederation,  1778.) 

"The  congress  shall  have  the  sole  power  of  appointing  courts 
in  the  several  United  States  for  trial  of  piracies  committed  on  the 
high  seas,  and  for  deciding  finally  appeals  in  all  cases  of  capture 
arising  in  such  states  respectively."  (Drayton's  Articles  of  Con- 
federation, 1778.) 

"  That  a  national  judiciary  be  established  ;  to  consist  of  one  or 
more  supreme  tribunals  and  of  inferior  tribunals  ;  to  be  chosen 
by  the  national  legislature  ;  to  hold  their  offices  during  good  be- 
havior, and  to  receive  punctually,  at  stated  times,  fixed  compen- 
sation for  their  services,  in  which  no  increase  or  diminution  shall 

29s 


Evolution  of  the  Constitution 

be  made  so  as  to  affect  the  persons  actually  in  office  at  the  time 
of  such  increase  or  diminution.  That  the  jurisdiction  of  the 
inferior  tribunals  shall  be  to  hear  and  determine,  in  the  first 
instance,  and  of  the  supreme  tribunal  to  hear  and  determine,  in 
the  dernier  ressort,  all  piracies  and  felonies  on  the  high  seas  ;  cap- 
tures from  an  enemy  ;  cases  in  which  foreigners,  or  citizens  of 
other  states,  applying  to  such  jurisdictions,  may  be  interested  ;  or 
which  respect  the  collection  of  the  national  revenue,  impeach- 
ments of  any  national  officers,  and  questions  which  may  involve 
the  national  peace  and  harmony."     (Randolph's  Plan,  1787.) 

"  The  legislature  of  the  United  States  shall  have  the  power  to 
constitute  tribunals  inferior  to  the  supreme  court. 

"  The  legislature  of  the  United  States  shall  have  the  power, 
and  it  shall  be  their  duty,  to  establish  such  courts  of  law,  equity, 
and  admiralty  as  shall  be  necessary. 

"  The  judges  of  the  courts  shall  hold  their  offices  during  good 
behavior  and  receive  a  compensation  which  shall  not  be  increased 
or  diminished  during  their  continuance  in  office.  One  of  these 
courts  shall  be  termed  the  supreme  court,  whose  jurisdiction  shall 
extend  to  all  cases  arising  under  the  laws  of  the  United  States,  or 
affecting  ambassadors,  other  public  ministers,  and  consuls  ;  to  the 
trial  or  impeachment  of  officers  of  the  United  States  ;  to  all  cases 
of  admiralty  and  maritime  jurisdiction.  In  cases  of  impeachment 
affecting  ambassadors  and  other  public  ministers  this  jurisdiction 
shall  be  original  and  in  all  other  cases  appellate."  (Pinckney's 
Plan,  1787.) 

• '  The  congress  shall  have  power  to  constitute  tribunals  inferior 
to  the  supreme  court. 

"  The  judicial  power  of  the  United  States  shall  be  vested  in 
one  supreme  court  and  in  such  inferior  courts  as  the  congress 
may  from  time  to  time  ordain  and  establish.  The  judges,  both 
of  the  supreme  and  inferior  courts,  shall  hold  their  offices  during 
good  behavior,  and  shall,  at  stated  times,  receive  for  their  ser- 
vices a  compensation  which  shall  not  be  diminished  during  their 
continuance  in  office. 

"  The  judicial  power  shall  extend  to  all  cases  in  law  and  equity 
arising  under  this  constitution,  the  laws  of  the  United  States  and 

296 


Federalism  in  Detail 

treaties  made,  or  which  shall  be  made,  under  their  authority ; 
to  all  cases  affecting  ambassadors,  other  public  ministers,  and 
consuls  ;  to  all  cases  of  admiralty  and  maritime  jurisdiction  ;  to 
controversies  to  which  the  United  States  shall  be  a  party  ;  to 
controversies  between  two  or  more  states ;  between  a  state  and 
citizens  of  another  state  ;  between  citizens  of  different  states ; 
between  citizens  of  the  same  state  claiming  lands  under  grants  of 
different  states  ;  and  between  a  state,  or  the  citizens  thereof,  and 
foreign  states,  citizens,  or  subjects. 

"  In  all  cases  affecting  ambassadors,  other  public  ministers, 
and  consuls,  and  those  in  which  a  state  shall  be  a  party,  the 
supreme  court  shall  have  original  jurisdiction.  In  all  the  other 
cases  before  mentioned  the  supreme  court  shall  have  appellate 
jurisdiction,  both  as  to  law  and  fact,  with  such  exceptions  and 
under  such  regulations  as  the  congress  shall  make."  (The  Con- 
stitution.) 

"  The  judicial  power  of  the  United  States  shall  not  be  construed 
to  extend  to  any  suit  in  law  or  equity  commenced  or  prosecuted 
against  one  of  the  United  States  by  citizens  of  another  state,  or  by 
citizens  or  subjects  of  any  foreign  state."  (Eleventh  Amendment 
to  the  Constitution.) 

15.  Power  to  Borrow  Money. 

"The  United  States,  in  congress  assembled,  shall  have  au- 
thority to  borrow  money  or  emit  bills  on  the  credit  of  the  United 
States,  transmitting  every  half  year  to  the  respective  states  an 
account  of  the  sums  of  money  so  borrowed  or  emitted."  (Arti- 
cles of  Confederation,  1778.) 

"  The  congress  shall  have  the  sole  power  of  emitting  and  bor- 
rowing money  upon  the  credit  of  the  United  States,  from  time  to 
time,  not  exceeding  the  sum  ascertained  as  necessary  to  be  raised 
for  the  service  of  the  confederacy,  transmitting  to  the  several 
states,  half  yearly,  an  account  of  the  sums  of  money  so  emitted 
and  borrowed,  applying  the  said  sums  of  money  ascertained  to  be 
raised,  and  allowed  to  be  emitted  and  borrowed,  for  defraying  the 
public  expense."     (Drayton's  Articles  of  Confederation,  1778.) 

297 


Evolution  of  the  Constitution 

"The  legislature  of  the  United  States  shall  have  the  power  to 
borrow  money  and  emit  bills  of  credit."  (Pinckney's  Plan, 
1787.) 

"The  congress  shall  have  power  to  borrow  money  on  the 
credit  of  the  United  States."     (The  Constitution.) 

16.  Regulation  of  the  Value  of  Money. 

"And,  lastly,  whether  considering  the  trouble  and  confusion 
attending  the  endless  diversity  of  money,  it  would  not  be  best, 
by  an  act  of  the  legislature  at  home,  to  establish  one  medium  to 
obtain  in  the  colonies."     (Dr.  Johnson's  Plan  of  1660.) 

' '  The  congress  shall  also  make  such  general  ordinances  as 
relate  to  our  general  currency."  (Franklin's  Articles  of  Confed- 
eration, 1775.) 

' '  The  United  States,  in  congress  assembled,  shall  also  have 
the  sole  and  exclusive  right  and  power  of  regulating  the  alloy  and 
value  of  coin  struck  by  their  own  authority,  or  by  that  of  the  re- 
spective states."     (Articles  of  Confederation,  1778.) 

"The  congress  shall  have  the  sole  power  of  regulating  the 
alloy  and  value  of  coin  struck  by  their  authority."  (Drayton's 
Articles  of  Confederation,  1778.) 

"The  legislature  of  the  United  States  shall  have  the  power  to 
coin  money  and  regulate  the  value  of  all  coins,  [and]  to  declare 
the  law  and  punishment  of  counterfeiting  coin."  (Pinckney's 
Plan  of  1787.) 

' '  The  congress  shall  have  power  to  coin  money,  regulate  the 
value  thereof  and  of  foreign  coin,  [and]  to  provide  the  punish- 
ment of  counterfeiting  the  securities  and  current  coin  of  the 
United  States."     (The  Constitution.) 

17.  Standard  of  Weights  and  Measures. 

"The  United  States,  in  congress  assembled,  shall  also  have 
the  sole  and  exclusive  right  and  power  of  fixing  the  standard  of 
weights  and  measures."     (Articles  of  Confederation,  1778.) 

"  The  legislature  of  the  United  States  shall  have  the  power  to 
298 


Federalism  in  Detail 

fix  the  standard  of  weights  and  measures."     (Pinckney's  Plan, 

1787.) 

"  The  congress  shall  have  power  to  fix  the  standard  of  weights 
and  measures."     (The  Constitution.) 

18.  Army. 

An  army  is  an  essential  part  of  a  federal  government 
if  the  federalism  is  to  endure.  In  fact,  the  earliest 
forms  of  federalism  had  in  view  an  army  as  their  prin- 
cipal object  The  New  England  union  of  1643  was 
established  almost  for  the  sole  purpose  of  raising  an 
army  to  protect  the  provinces  that  were  associated  in 
the  union. 

At  the  same  time  there  is  the  danger  that  the  army 
may  become  so  large  as  to  be  a  menace  to  liberty,  or 
that  it  may  be  used  to  coerce  some  one  or  more  of  the 
States  for  the  benefit  of  the  others.  To  guard  against 
this,  the  early  plans  of  union  usually  left  much  of  the 
control  to  the  individual  provinces,  each  of  which  was 
to  furnish  its  quota  of  men  and  no  more,  appoint  the 
officers,  and  furnish  arms  and  equipments,  while  ammu- 
nition, food,  and  general  expenses  were  to  be  provided 
by  the  union.  As  federalism  developed,  and  less  and 
less  was  left  to  the  individual  States,  the  control  of  the 
army  was  placed  in  the  Congress,  or  whatever  body  most 
fully  represented  the  people,  who  have  always  proved 
to  be  very  jealous  of  standing  armies,  and,  in  this  re- 
spect, most  careful  guardians  of  their  liberty, 

"  It  is  further  agreed  that  if  any  one  of  these  jurisdictions,  or 
any  plantations  under  it,  or  in  any  combination  with  them  be 
invaded  by  any  enemy  whomsoever,  upon  notice  and  request  of 
any  three  magistrates  of  that  jurisdiction  so  invaded,  the  rest  of 

299 


Evolution  of  the  Constitution 

the  confederates,  without  any  further  meeting  or  expostulation, 
shall  forthwith  send  aid  to  the  confederate  in  danger,  but  in  differ- 
ent proportions, — namely,  the  Massachusetts  an  hundred  men 
sufficiently  armed  and  provided  for  such  a  service  and  journey, 
and  each  of  the  rest  forty-five  so  armed  and  provided,  or  any  less 
number,  if  less  be  required,  according  to  this  proportion.  But 
if  such  confederate  in  danger  may  be  supplied  by  their  next  con- 
federate not  exceeding  the  number  hereby  agreed,  they  may 
crave  help  there,  and  seek  no  further  for  the  present.  The 
charge  to  be  borne  as  in  this  article  is  expressed,  and,  at  the 
return,  to  be  victualled  and  supphed  with  powder  and  shot  for 
their  journey  (if  there  be  need)  by  that  jurisdiction  which  em- 
ployed or  sent  for  them  ;  but  none  of  these  jurisdictions  to  exceed 
these  numbers  till  by  a  meeting  of  the  commissioners  for  this 
confederation  a  greater  aid  appear  necessary.  And  this  propor- 
tion to  continue  till,  upon  knowledge  of  greater  numbers  in  each 
jurisdiction  which  shall  be  brought  to  the  next  meeting,  some 
other  proportion  be  ordered.  But  in  any  such  case  of  sending 
men  for  present  aid,  whether  before  or  after  such  order  or  altera- 
tion, it  is  agreed  that  at  the  meeting  of  the  commissioners  for 
this  confederation  the  cause  of  such  war  or  invasion  be  duly  con- 
sidered, and,  if  it  appear  that  the  fault  lay  in  the  parties  so 
invaded,  that  then  that  jurisdiction  or  plantation  make  just  satis- 
faction, both  to  the  invaders  whom  they  have  injured,  and  bear 
all  the  charges  of  the  war  themselves  without  requiring  any 
allowance  from  the  rest  of  the  confederates  towards  the  same. 
And  further,  that  if  any  jurisdiction  see  any  danger  of  any  inva- 
sion approaching,  and  there  be  time  for  a  meeting,  that  in  such 
case  three  magistrates  of  that  jurisdiction  may  summon  a  meeting 
at  such  convenient  place  as  themselves  shall  think  meet,  to  con- 
sider and  provide  against  the  threatened  danger,  provided  when 
they  are  met  they  may  remove  to  what  place  they  please,  only 
whilst  any  of  these  four  confederates  have  but  three  magistrates 
in  their  jurisdiction,  their  request  or  summons  from  any  two  of 
them  shall  be  accounted  of  equal  force  with  the  three  mentioned 
in  both  the  clauses  of  this  article  till  there  be  an  increase  of  magis- 
trates there."     (New  England  Union,  1643.) 


Federalism  in  Detail 

[The  Congress]  "  to  consider  of  ways  and  means  to  support 
the  union  and  safety  of  these  provinces  against  the  public  ene- 
mies."    (Penn's  Plan  of  Union,  1696.) 

"That  there  be  a  reasonable  sum  raised  and  paid  every  year 
from  each  province  for  erecting  forts,  where  proper,  and  repairing 
the  old  ;  and  for  providing  the  said  forts  with  arms  and  ammuni- 
tion, etc.,  the  better  to  enable  the  provinces  to  extend  their  terri- 
tories backward. 

' '  That  the  standing  military  forces  that  shall  be  thought  need- 
ful for  the  defence  of  all  the  provinces  be  on  any  vacancies  filled 
up  by  the  said  captain-general,  to  be  confirmed  by  his  Majesty's 
commission. 

' '  That  the  said  captain-general  have  power  to  remove  any 
officer  in  the  militia  of  any  province  when  under  his  command 
upon  service,  but  to  fill  up  the  vacancies  with  persons  only  of  the 
province  to  which  the  said  militia  belonged. 

' '  That  the  captain-general  have  power  to  order  and  march  the 
militia  of  any  province  to  the  defence  of  another  (this  article  to  be 
settled  under  reasonable  rules,  allowances,  and  restrictions)." 
(Lord  Stair's  Plan,  1 721.) 

"That  they  [the  grand  council]  raise  and  pay  soldiers  and 
build  forts  for  the  defence  of  any  of  the  colonies."  (Frankhn's 
Plan  of  1754.) 

• '  That  one  company,  consisting  of  one  hundred  men  complete, 
exclusive  of  officers,  shall  be  raised  by  every  province,  and  a 
regiment  formed  of  the  thirteen  companies  to  be  called  the  union 
regiment,  to  be  commanded  by  one  colonel,  heutenant-colonel, 
and  major,  to  be  appointed  by  the  king. 

"That  this  Uttle  standing  army  shall  assist  in  making  roads, 
building  forts,  or  any  other  necessary  work."     (Peters' s  Plan, 

1754.) 

• '  That  the  president  and  council  shall  have  power  to  raise  and 
pay  soldiers  and  build  forts  for  the  defence  of  any  of  the  colo- 
nies, and  for  removing  all  encroachments  upon  his  Majesty's 
territories,  and  for  the  annoyance  of  his  Majesty's  enemies." 
(Hutchinson's  Plan,  1754.) 

"The  congress  shall  also  make  such  general  ordinances  as 

30' 


Evolution  of  the  Constitution 

may  relate  to  the  establishment  of  posts  and  the  regulation  of  our 
common  forces."     (Franklin's  Articles  of  Confederation,  1775.) 

' '  The  United  States,  in  congress  assembled,  shall  also  have 
the  sole  and  exclusive  right  and  power  of  making  rules  for  the 
government  and  regulation  of  the  said  land  and  naval  forces,  and 
directing  their  operations. 

"The  United  States,  in  congress  assembled,  shall  have  au- 
thority to  agree  upon  the  number  of  land  forces,  and  to  make 
requisitions  from  each  state  for  its  quota  in  proportion  to  the 
number  of  white  inhabitants  in  such  state,  which  requisition  shall 
be  binding  ;  and  thereupon  the  legislature  of  each  state  shall  ap- 
point the  regimental  officers,  raise  the  men,  and  clothe,  arm,  and 
equip  them,  in  a  soldier-like  manner,  at  the  expense  of  the  United 
States  ;  and  the  officers  and  men  so  clothed,  armed,  and  equipped 
shall  march  to  the  place  appointed,  and  within  the  time  agreed 
on  by  the  United  States  in  congress  assembled.  But  if  the  United 
States,  in  congress  assembled,  shall,  on  consideration  of  circum- 
stances, judge  proper  that  any  state  should  not  raise  men,  or 
should  raise  a  smaller  number  than  its  quota,  and  that  any  other 
state  should  raise  a  greater  number  of  men  than  the  quota  thereof, 
such  extra  number  shall  be  raised,  officered,  clothed,  armed,  and 
equipped  in  the  same  manner  as  the  quota  of  such  state,  unless 
the  legislature  of  such  state  shall  judge  that  such  extra  number 
cannot  be  safely  spared  out  of  the  same  ;  in  which  case  they  shall 
raise,  officer,  clothe,  arm,  and  equip  as  many  of  such  extra  num- 
ber as  they  judge  can  be  safely  spared  ;  and  the  officers  and  men 
so  clothed,  armed,  and  equipped  shall  march  to  the  place  ap- 
pointed, and  within  the  time  agreed  on  by  the  United  States  in 
congress  assembled."     (Articles  of  Confederation,  1778.) 

"The  congress  shall  have  the  sole  power  of  ascertaining  the 
military  land  quota  of  each  state  in  proportion  to  the  number  of 
white  inhabitants  therein  respectively  ;  making  rules  for  the  gov- 
ernment of  the  said  military  quotas, — directing,  ordering,  and 
commanding  the  said  military  quotas,  generalissimo,  major-gen- 
erals, principal  staff  officer,  subordinate  officers,  war  office,  in  all 
their  operations  and  proceedings  ;  collecting  military  stores  and 
provisions,  and  issuing  them  for  the  service  of  the  United  States. 

302 


Federalism  in  Detail 

"  The  military  land  quota  of  each  of  the  United  States  shall 
be  in  proportion- to  the  number  of  white  inhabitants  in  each.  The 
several  states  shall,  in  due  time,  embody  the  several  military 
quotas  required  by  the  congress,  and  shall  raise,  clothe,  arm,  and 
maintain  them  at  the  general  expense  rated  by  the  congress. 
The  several  states  shall  appoint  all  the  regimental  and  deputy 
staff  officers  incidental  to  their  quotas  ;  and  into  as  many  brigades 
as  the  congress  shall  brigade  their  respective  quotas,  so  many 
brigadier-generals  shall  such  respective  state  nominate, — the 
whole  to  be  commissioned  by  the  congress.  All  vacancies  in  a 
quota  shall  be  supplied  by  its  state.  The  executive  power  in 
each  state,  except  that  in  which  the  congress  be  sitting,  shall, 
under  the  authority  and  control  of  the  congress,  direct  the  land 
forces,  ships,  and  vessels  of  war,  and  all  officers  incidental 
thereto,  in  the  service  of  the  United  States  within  such  state. 
The  proportionate  pecuniary  quotas  of  the  several  states  shall 
be  regulated  in  proportion  to  the  number  of  inhabitants  in 
each  state  respectively.  Whenever  such  pecuniary  quotas  for 
the  service  of  the  United  States  shall  be  required  by  congress 
they  shall  state  the  capitation  rate.  Each  state  shall  then  ap- 
point persons  to  number  its  whole  inhabitants,  according  to  the 
mode  stated,  to  ascertain  the  number  of  white  inhabitants  in  each 
state ;  such  persons  being  also  caused  to  specify  the  number  of 
white,  mustizo,  mulatto,  and  negro  inhabitants  respectively. 
Such  a  numeration  being  duly  returned,  the  legislature  in  each 
state  shall  levy  the  sum  of  money  to  arise  therefrom  in  such  mode 
as  they  shall  deem  expedient ;  and  a  true  copy  of  the  said  return 
shall,  without  loss  of  time,  be  sent  to  congress.  The  several 
states  shall  duly  pay  their  pecuniary  quotas  into  the  treasury  office 
of  America  by  the  time  mentioned  by  the  congress  for  such  pay- 
ment, unless  to  the  contrary  directed  for  the  good  of  the  public 
service  ;  in  which  case,  such  state  so  directed  shall,  within  twelve 
months,  duly  account  with  the  said  treasury  office  for  the  pecu- 
niary quota,  or  part  thereof  so  directed  to  be  retained."  (Dray- 
ton's Articles  of  Confederation,  1778.) 

"  The  legislature  of  the  United  States  shall  have  power  to  raise 
armies  ;  to  pass  laws  for  arming,  organizing,  and  disciplining  the 

303 


Evolution  of  the  Constitution 

militia  of  the  United  States  ;  to  provide  such  arsenals  and  erect 
such  fortifications  as  may  be  necessary  for  the  United  States,  and 
to  exercise  exclusive  jurisdiction  therein  ;  to  establish  military 
roads."     (Pinckney's  Plan,  1787.) 

"  The  congress  shall  have  power  to  raise  and  support  armies, 
but  no  appropriation  of  money  to  that  use  shall  be  for  a  longer 
term  than  two  years. 

' '  To  make  rules  for  the  government  and  regulation  of  the  land 
and  naval  forces. 

"To  provide  for  calling  forth  the  militia  to  execute  the  laws 
of  the  union,  suppress  insurrections,  and  repel  invasions. 

"To  provide  for  organizing,  arming,  and  disciplining  the 
militia,  and  for  governing  such  part  of  them  as  may  be  employed 
in  the  service  of  the  United  States,  reserving  to  the  states  re- 
spectively the  appointment  of  the  officers  and  the  authority  of 
training  the  militia  according  to  the  discipline  prescribed  by  con- 
gress. 

"And  to  exercise  like  authority  [/.<?.,  exclusive  authority]  over 
all  places  purchased  by  the  consent  of  the  legislature  of  the  state 
in  which  the  same  shall  be  for  the  erection  of  forts,  magazines, 
arsenals,  dock-yards,  and  other  needful  buildings."  (The  Con- 
stitution.) 

19.  Navy. 

"That,  until  the  said  provinces  shall  be  enabled  thereto,  his 
Majesty  would  allow  eight  or  ten  small  men-of-war  constantly  to 
attend  this  general  government  and  to  protect  the  trade  ;  which 
ships  to  be  under  the  command  and  direction  of  the  said  captain- 
general,  and  to  be  paid  their  wages  by  the  joint  government  of 
the  whole  continent  so  soon  as  the  ability  of  this  new  general 
government  can  allow  of."     (Lord  Stair's  Plan,  1721.) 

"That  the  president-general,  with  the  advice  of  the  grand 
council,  equip  vessels  of  force  to  guard  the  coasts  and  protect  the 
trade  on  the  ocean,  lakes,  or  great  rivers."  (Franklin's  Plan  of 
1754.) 

"The  United  States,  in  congress  assembled,  shall  also  have 
the  sole  and  exclusive  right  and  power  of  making  rules  for  the 

3<H 


Federalism  in  Detail 

government  and  regulation  of  the  said  land  and  naval  forces  and 
directing  their  operation. 

"  The  United  States,  in  congress  assembled,  shall  have  author- 
ity to  build  and  equip  a  navy."     (Articles  of  Confederation,  1778.) 

' '  The  congress  shall  have  the  sole  power  of  building,  pur- 
chasing, and  equipping  a  naval  force  in  the  service  of  the  United 
States  of  America  ;  making  rules  for  the  government  of  the  said 
naval  force,  admiralty  office  ;  directing,  ordering,  and  command- 
ing the  said  naval  force,  admiralissimo,  subordinate  officers, 
naval  office  in  all  their  operations  and  proceedings.  Each  state 
shall,  within  five  years,  establish  a  foundation  for  a  naval  semi- 
nary, making  suitable  provision  for  the  constant  maintenance, 
education,  and  fitting  for  sea  five  youths  for  every  thousand 
white  inhabitants  within  such  state."  (Drayton's  Articles  of  Con* 
federation,  1778.) 

'  •  The  legislature  of  the  United  States  shall  have  the  power  to 
build  and  equip  fleets  ;  to  provide  such  dock -yards  as  may  be 
necessary  for  the  United  States,  and  to  exercise  exclusive  jurisdic- 
tion therein."     (Pinckney's  Plan,  1787.) 

"The  congress  shall  have  power  to  provide  and  maintain  a 
navy. 

"And  to  exercise  like  authority  [i.e.,  exclusive  authority]  over 
all  places  purchased  by  the  consent  of  the  legislature  of  the  state 
in  which  the  same  shall  be,  for  the  erection  of  forts,  magazines, 
arsenals,  dock-yards,  and  other  needful  buildings."  (The  Con- 
stitution.) 

20.  Controversies  between  States. 

"That  the  power  and  duty  of  congress  shall  extend  to  the 
settHng  all  disputes  and  differences  between  colony  and  colony 
about  limits  or  any  other  cause."  (Franklin's  Articles  of  Con- 
federation, 1775.) 

"  The  United  States,  in  congress  assembled,  shall  also  be  the 
last  resort  on  appeal  in  all  disputes  and  differences  now  subsist- 
ing, or  that  hereafter  may  arise,  between  two  or  more  states  con- 
cerning boundary,  jurisdiction,  or  any  other  cause  whatever." 
(Articles  of  Confederation,  1778.) 

30  305 


Evolution  of  the  Constitution 

"  The  congress  shall  have  the  sole  power  of  being  the  dernier 
ressort  on  appeal  in  all  cases  of  dispute  between  any  two  or  more 
of  the  United  States."  (Drayton's  Articles  of  Confederation, 
1778.) 

"They  [the  senate]  shall  have  the  exclusive  power  to  regfu- 
late  the  manner  of  deciding  all  disputes  and  controversies  now 
existing,  or  which  may  arise,  between  the  states,  respecting 
jurisdiction  or  territory."     (Pinckney's  Plan,  1787.) 

"  The  judicial  power  shall  extend  to  controversies  between 
two  or  more  states."     (The  Constitution,) 

21.  Treaty-making  Power. 

"  That  the  president-general,  with  the  advice  of  the  grand 
council,  hold  or  direct  all  Indian  treaties  in  which  the  general 
interest  or  welfare  of  the  colonies  may  be  concerned."  (Frank- 
lin's Plan  of  1754.) 

"That  the  president,  by  the  advice  of  the  council,  may  hold 
and  manage  all  Indian  treaties  in  which  the  general  interest  or 
welfare  of  the  colonies  may  be  concerned."     (Hutchinson's  Plan, 

1754.) 

"  That  the  power  and  duty  of  congress  shall  extend  to  enter- 
ing into  alliances."     (Franklin's  Articles  of  Confederation,  1775.) 

"  That  the  president  and  commander-in-chief  shall  have  no 
power  to  make  war  or  peace,  or  enter  into  any  final  treaty,  with- 
out the  consent  of  the  general  assembly  and  legislative  council. ' ' 
(South  Carolina  Constitution  of  1776.) 

' '  The  United  States,  in  congress  assembled,  shall  have  the 
sole  and  exclusive  right  and  power  of  entering  into  treaties  and 
alliances,  provided  that  no  treaty  of  commerce  shall  be  made 
whereby  the  legislative  power  of  the  respective  states  shall  be 
restrained  from  imposing  such  imposts  and  duties  on  foreigners 
as  their  own  people  are  subjected  to,  or  from  prohibiting  the 
exportation  or  importation  of  any  species  of  goods  or  commodities 
whatsoever."     (Articles  of  Confederation,  1778.) 

"  The  congress  shall  have  the  sole  power  of  entering  into  and 
concluding  treaties  and  alliances  with  foreign  powers."  (Dray- 
ton's Articles  of  Confederation,  1778.) 

306 


Federalism  in  Detail 

"The  senate  shall  have  the  sole  and  exclusive  power  to  make 
treaties."     (Pinckney's  Plan,  1787.) 

"  He  [the  President]  shall  have  power,  by  and  with  the  advice 
and  consent  of  the  senate,  to  make  treaties,  provided  two-thirds 
of  the  senators  present  concur,"     (The  Constitution.) 

22.   Money  not  to  Issue  from  Treasury  except  by 

Law. 

"Yet  no  money  to  issue  but  by  joint  orders  of  the  president- 
general  and  grand  council,  except  where  sums  have  been  appro- 
priated to  particular  purposes  and  the  president-general  is  pre- 
viously empowered  by  an  act  to  draw  for  such  sums. ' '  (Franklin' s 
Plan  of  1754.) 

' '  But  no  money  shall  issue  out  of  any  treasury  without  the 
special  order  of  the  president,  by  the  advice  of  the  council,  ex- 
cept where  sums  have  been  appropriated  to  particular  purposes, 
and  the  president  shall  be  specially  empowered  to  draw  for  such 
sums."     (Hutchinson's  Plan,  1754.) 

'  •  No  moneys  shall  be  issued  out  of  the  treasury  of  this  com- 
monwealth and  disposed  of  (except  such  sums  as  may  be  appro- 
priated for  the  redemption  of  bills  of  credit  or  treasurer's  notes, 
or  for  the  payment  of  interest  arising  thereon),  but  by  warrant 
under  the  hand  of  the  governor  for  the  time  being,  with  the  ad- 
vice and  consent  of  the  council  for  the  necessary  defence  and 
support  of  the  commonwealth,  and  for  the  protection  and  preser- 
vation of  the  inhabitants  thereof,  agreeably  to  the  acts  and  re- 
solves of  the  general  court."  (Massachusetts  Constitution  of 
1780.) 

The  above  provision  from  the  Massachusetts  constitution  of 
1 780  is  repeated  in  the  New  Hampshire  constitution  of  1 784. 

' '  No  money  shall  be  drawn  from  the  treasury  but  in  conse- 
quence of  appropriations  made  by  law."     (The  Constitution.) 

23.  Post-Office. 

"That  there  be  a  post  established  to  pass  once  a  week,  at 
least,  through  all  the  provinces  from  the  southernmost  settlement 

307 


Evolution  of  the  Constitution 

to  the  most  northerly,  that  is  possible,  with  orders  to  send  intelli- 
gences ;  and  that  every  governor  may  correspond  with  the  gen- 
eral on  all  occasions."     (Lord  Stair's  Plan,  1721.) 

"The  United  States,  in  congress  assembled,  shall  also  have 
the  sole  and  exclusive  right  and  power  of  establishing  and  regu- 
lating post-offices  from  one  state  to  another  throughout  all  the 
United  States,  and  exacting  such  postage  on  the  papers  passing 
through  the  same  as  may  be  requisite  to  defray  the  expenses  of 
the  said  office."     (Articles  of  Confederation,  1778.) 

"The  congress  shall  have  the  sole  power  of  establishing  and 
regulating  post-offices  throughout  the  United  States,  exacting  such 
postage  as  may  be  necessary  to  defray  the  expense  of  the  said 
offices,  or  any  part  thereof."  (Drayton's  Articles  of  Confedera- 
tion, 1778.) 

•  •  The  legislature  of  the  United  States  shall  have  the  power 
to  establish  post-offices  ;  to  establish  post-roads. ' '  (Pinckney's 
Plan,  1787.) 

"  The  congress  shall  have  power  to  establish  post-offices  and 
post-roads."     (The  Constitution.) 

24.  Treason. 

"The  congress  shall  have  power  to  declare  what  shall  be 
deemed  treason  against  the  United  States  of  America,  and  in 
what  manner  such  treason  shall  be  punished."  (Drayton's  Arti- 
cles of  Confederation,  1778.) 

'  •  The  legislature  of  the  United  States  shall  have  the  power  to 
declare  the  punishment  of  treason,  which  shall  consist  only  in 
levying  war  against  the  United  States,  or  any  of  them,  or  in  ad- 
hering to  their  enemies.  No  person  shall  be  convicted  of  treason 
but  by  the  testimony  of  two  witnesses."     (Pinckney's  Plan,  1787.) 

"  Treason  against  the  United  States  shall  consist  only  in  levy- 
ing war  against  them,  or  in  adhering  to  their  enemies,  giving 
them  aid  and  comfort.  No  person  shall  be  convicted  of  treason 
unless  on  the  testimony  of  two  witnesses  to  the  same  overt  act, 
or  on  confession  in  open  court. 

'  •  The  congress  shall  have  power  to  declare  the  punishment 
of  treason,  but  no  attainder  of  treason  shall  work  corruption  of 

308 


Federalism  in  Detail 

blood,  or  forfeiture,  except  during  the  life  of  the  person  attainted." 
(The  Constitution.) 

25.  Letters  of  Marque. 

"The  United  States,  in  congress  assembled,  shall  have  the 
sole  and  exclusive  power  of  granting  letters  of  marque  and  re- 
prisal in  times  of  peace."     (Articles  of  Confederation,  1778.) 

' '  The  congress  shall  have  the  sole  power  of  granting  letters 
of  marque  and  reprisal."  (Drayton's  Articles  of  Confederation, 
1778.) 

' '  The  congress  shall  have  power  to  grant  letters  of  marque 
and  reprisal."     (The  Constitution.) 

26.  Nationality. 

'  •  The  right  of  making  laws  for  the  United  States  should  be 
vested  in  all  their  inhabitants. 

"  In  all  the  affairs  that  respect  the  whole,  congress  must  have 
the  same  power  to  enact  laws  and  compel  obedience  throughout 
the  continent  as  the  legislatures  of  the  respective  states  have  in 
their  several  jurisdictions.  If  congress  have  any  power,  they 
must  have  the  whole  power  of  the  continent. 

"  Let  every  state  reserve  its  sovereign  right  of  directing  its  own 
internal  affairs  ;  but  give  to  congress  the  sole  right  of  conducting 
the  general  affairs  of  the  continent. ' '  (Noah  Webster' s ' '  Sketches 
of  American  Policy,"  1785.) 

' '  We,  the  people  of  the  states  of  New  Hampshire,  Massachu- 
setts, Rhode  Island  and  Providence  Plantations,  Connecticut, 
New  York,  New  Jersey,  Pennsylvania,  Delaware,  Maryland, 
Virginia,  North  Carolina,  South  Carolina,  and  Georgia,  do  ordain, 
declare,  and  establish  the  following  Constitution  for  the  govern- 
ment of  ourselves  and  posterity."     (Pinckney's  Plan,  1787.) 

"  We,  the  people  of  the  United  States,  in  order  to  form  a  more 
perfect  union,  establish  justice,  insure  domestic  tranquillity,  pro- 
vide for  the  common  defence,  promote  the  general  welfare,  and 
secure  the  blessings  of  liberty  to  ourselves  and  our  posterity,  do 
ordain  and  establish  this  Constitution  for  the  United  States  of 
America."     (The  Constitution.) 

309 


CHAPTER   VIII. 

CLAUSES  OF   THE    CONSTITUTION    WHICH   WERE  OF  SHORT 
DEVELOPMENT. 

In  the  course  of  the  evolution  which  has  been  traced 
in  the  preceding  chapters  it  is  noticeable  that  almost 
every  document  contained  a  few  points  that  were  new, 
and  in  this  way  the  development  progressed.  Almost 
every  colony,  State,  or  person  that  was  considered  con- 
tributed its  share,  and  it  would  be  extremely  difficult 
to  decide  what  place  or  what  person  did  the  most 
When  the  Constitution  had  absorbed  all  this  develop- 
ment, it  also,  like  its  predecessors,  added  some  new 
provisions  which  were  suggested  by  circumstances,  and 
these  are  the  only  parts  of  the  Constitution  which  can 
be  said  to  have  been  "struck  off  at  a  given  time." 

They  were  not,  however,  imitations  of  anything  in 
Europe,  Most  of  them  were  very  simple  and  necessary 
provisions,  which  speak  for  themselves  : 

1.  The  debts  contracted  by  the  government  under  the  Articles 
of  Confederation  to  be  valid  against  the  government  under  the 
Constitution. 

2.  Congress  to  have  exclusive  jurisdiction  over  such  district 
(not  exceeding  ten  miles  square)  as  should  become  the  seat  of 
government. 

3.  The  United  States  to  protect  each  state  from  invasion,  and 
also  from  domestic  violence,  on  application  of  the  legislature  of 
the  state,  or,  if  it  is  not  in  session,  on  application  of  the  gov- 
ernor. 

310 


Clauses  of  Short  Development 

4.  The  ratification  by  the  conventions  of  nine  states  to  be  suf- 
ficient to  estabUsh  the  Constitution  between  the  states  so  ratifying. 

5.  The  United  States  to  guarantee  to  every  state  a  republican 
form  of  government. 

6.  The  times,  places,  and  manner  of  holding  elections  for 
senators  and  representatives  to  be  prescribed  in  each  state  by  the 
legislature  thereof ;  but  the  congress  may,  at  any  time,  by  law, 
make  or  alter  such  regulations,  except  as  to  the  places  of  choosing 
senators. 

7.  The  President  may  require  the  opinion,  in  writing,  of  the 
principal  officer  in  each  of  the  executive  departments,  upon  any 
subject  relating  to  the  duties  of  their  respective  offices. 

8.  The  congress  to  have  power  to  establish  uniform  laws  on 
the  subject  of  bankruptcies. 

9.  No  senator  or  representative  to  hold  any  office  which  shall 
have  been  created  or  the  emoluments  thereof  increased  during 
the  time  for  which  he  was  elected. 

10.  The  importation  of  slaves  not  to  be  prohibited  prior  to  the 
year  1808,  but  a  tax  on  such  importation  not  exceeding  ten  dol- 
lars for  each  person  may  be  imposed. 

11.  New  states  to  be  admitted  into  the  Union  by  congress. 

12.  The  congress  to  have  power  to  dispose  of  and  make  rules 
and  regulations  for  the  territory  or  other  property  of  the  United 
States. 

13.  No  tax  or  duty  to  be  laid  on  articles  exported  from  any 
state.  No  preference  to  be  given  by  any  regulation  of  commerce 
or  revenue  to  the  ports  of  one  state  over  those  of  another.  Ves- 
sels bound  to  or  from  one  state  not  to  be  obliged  to  enter,  clear, 
or  pay  duties  in  another. 

Among  the  amendments,  the  ninth,  which  says  that 
the  enumeration  of  certain  rights  shall  not  be  construed 
to  disparage  others  retained  by  the  people,  and  the 
tenth,  which  says  that  the  powers  not  delegated  to  the 
United  States  nor  prohibited  to  the  States  are  reserved 
to  the  States  or  to  the  people,  were  the  result  of  the 

3" 


Evolution  of  the  Constitution 

agitation  of  the  State-rights  party,  and  were  adopted 
immediately  after  the  Constitution  went  into  effect. 
The  eleventh  amendment,  which  prohibits  the  extension 
of  the  judicial  power  to  any  suit  against  any  one  of  the 
States  by  citizens  of  another  or  by  citizens  of  a  foreign 
state,  was  also  the  result  of  the  same  agitation. 

There  were  also  two  parts  of  the  fifth  amendment 
which  are  not  to  be  found  in  previous  American  consti- 
tutions,— the  guarantee  that  no  person  shall  be  held  to 
answer  for  a  capital  or  infamous  crime  except  on  in- 
dictment of  a  grand  jury,  and  the  guarantee  that  no  per- 
son shall  be  deprived  of  life,  liberty,  or  property  without 
due  process  of  law.  These  were  old  principles  well 
known  for  centuries  among  the  English  race,  and  they 
had  appeared  in  colonial  statutes.  It  was  thought  that 
their  enforcement  would  be  better  secured  by  making 
them  a  part  of  the  National  Constitution. 

Since  the  adoption  of  the  twelfth  amendment,  which 
altered  the  method  of  electing  the  President,  there  have 
been  no  amendments  except  those  made  immediately 
after  the  civil  war,  and,  as  they  were  the  result  of  that 
war,  and  their  history  is  well  known,  they  need  not  be 
considered. 

There  are  three  clauses  in  the  Constitution  still  re- 
maining undiscussed  which  were  preceded  by  a  slight 
development,  and  their  history  can  be  traced  to  some 
extent  in  colonial  times. 

The  first  is  the  provision  that,  when  vacancies  occur 
in  the  representation  from  any  State,  the  executive  au- 
thority of  the  State  may  issue  writs  of  election  to  fill 
such  vacancies.     Some  of  the  colonial   charters,   like 

312 


Clauses  of  Short  Development 

those  of  Massachusetts  and  of  Rhode  Island,  gave  the 
assembly  authority  to  fill  vacancies  in  executive  offices 
until  there  should  be  another  election  ;  but  vacancies 
in  the  assembly  were  not  specially  provided  for.  Some 
of  the  constitutions  of  1776,  particularly  those  of  Dela- 
ware, Georgia,  and  North  Carolina,  directed  that  the 
legislature  should  issue  writs  of  election  for  filling  any 
vacancies  that  might  occur  in  its  membership.  The 
Maryland  constitution  of  1776  provided  that  such  writs 
should  be  issued  by  the  speaker ;  and  the  Pennsylvania 
constitution  of  the  same  year  gave  general  power  to  the 
president  and  council  to  fill  all  vacancies  in  office,  but 
whether  this  would  include  vacancies  in  the  legislature 
is  doubtful.  The  provision  in  the  Maryland  constitu- 
tion was  like  the  English  practice  of  that  time,  by  which, 
when  a  vacancy  occurred  in  the  House  of  Commons, 
the  Speaker  could  order  another  election  to  fill  the 
vacancy. 

The  Constitution  also  directs  that  the  President  shall 
receive  a  salary,  and  that  the  senators  and  representa- 
tives shall  receive  a  compensation  for  their  services. 
The  members  of  the  British  Parliament  received  no 
salaries,  and  it  seems  to  have  been  a  disputed  question 
at  the  time  our  National  Constitution  was  framed  whether 
members  of  Congress  should  be  paid  for  their  services. 
Franklin  argued  very  earnestly  that  they  should  not  be 
paid.  The  previous  documents  had  usually  been  silent 
on  this  subject ;  but  some  of  the  constitutions  of  1776, 
notably  that  of  Virginia  and  the  Massachusetts  consti- 
tution of  1780,  had  provided  for  the  salaries  of  the  gov- 
ernor and  other  officers ;  and  the  Pennsylvania  Frame 

3^3 


Evolution  of  the  Constitution 

of  1696  gave  the  members  of  the  council  five  shillings 
a  day,  the  members  of  the  assembly  four  shillings  a  day, 
and  the  members  of  both  bodies  twopence  a  mile  for 
travelling  expenses. 

The  provision  in  the  Constitution  requiring  the  pub- 
lication, from  time  to  time,  of  a  statement  and  account 
of  the  receipt  and  expenditure  of  all  public  money  had 
appeared  before  in  several  of  the  plans  of  union. 

This  completes  our  analysis  of  the  Constitution,  every 
clause  of  which  has  been  traced  to  its  origin.  The 
analysis  seems  to  show  that  the  Constitution  was  a 
growth,  and  that  it  is  as  much  the  result  of  the  natural 
development  of  progressive  history  as  is  the  British  Con- 
stitution. It  was  not,  as  Mr.  Gladstone  says,  "struck 
off  at  a  given  time ;"  nor  was  it,  as  Herbert  Spencer 
would  have  us  think,  "  obtained  by  a  happy  accident, 
not  by  normal  progress  ,•"  and  the  description  of  it  given 
by  Von  Hoist  and  others  as  "a  mere  experiment"  is 
equally  inaccurate. 


314 


CHAPTER    IX. 

DUTCH    SOURCES. 

The  appearance  of  Mr.  Campbell's  work,  "  The  Puri- 
tan in  Holland,  England,  and  America,"  was  a  great 
surprise  to  both  lawyers  and  scholars.  It  was  an  unex- 
pected, stunning  blow  ;  a  clap  of  thunder  out  of  a  clear 
sky.  Two  large,  handsome  volumes,  written  in  an  >at- 
tractive,  even  brilliant  manner,  informing  us  in  sharp, 
sarcastic  sentences,  with  an  immense  array  of  facts,  that 
our  most  cherished  liberties  and  customs  were  neither 
English  nor  native,  but  Dutch,  was  so  dazing  that  no 
one  at  first  knew  what  to  say,  and  we  have  scarcely  yet 
mustered  courage  enough  to  frame  a  reply. 

In  all  other  books  that  describe  or  criticise  our  insti- 
tutions,— whether  written  by  ourselves  or  by  foreigners, 
— there  is  not  even  a  suggestion  that  our  sources  were 
Dutch,  In  all  our  political  histories  in  which  every 
event  of  our  growth  is  given,  from  the  settlement  of  Vir- 
ginia in  1607  down  to  the  present  decade,  there  is  not 
a  sentence  or  a  hint  that  would  have  led  one  to  this 
discovery  of  Mr.  Campbell's.  More  than  that,  if  we 
examine  the  original  authorities,  the  writings  and  docu- 
ments of  the  colonists  and  of  the  framers  of  the  con- 
stitutions of  the  States  and  of  the  Constitution  of  the 
nation,  we  find  not  a  word  to  show  that  those  men,  our 
ancestors,  were  conscious  that  they  were  copying  from 

315 


Evolution  of  the  Constitution 

Holland.  I  certainly  never  saw  an  original  document, 
letter,  speech,  or  writing  of  any  kind  in  which  a  father 
of  the  republic  said  that  American  institutions  were  of 
Dutch  origin,  or  in  which  an  argument  was  made  in 
favor  of  transplanting  Dutch  institutions  to  America. 
Mr.  Campbell  quotes  no  writings  of  this  sort,  and  it  is 
not  unfair  to  infer  that  none  exist 

His  method  of  proof  is  not  at  all  documentary,  al- 
though in  his  preface  he  tells  us  that  documents  are  the 
only  sure  tests  for  the  truth  of  history,  and  he  has  much 
to  say  of  modern  scientific  methods  of  investigation.  In 
the  past,  he  tells  us,  history  was  written  by  legends, 
tradition,  and  rumor.  Public  documents  were  consid- 
ered parts  of  the  private  library  of  the  king,  and  it  is 
only  of  recent  years  that  official  records,  diplomatic 
correspondence,  and  state  papers  have  become  accessible 
to  historians.  "  One  can  imagine,"  he  says,  "  the  posi- 
tion of  a  writer  who  sat  down  to  compose  a  work  upon 
his  own  or  any  other  country  when  such  material  was 
everywhere  kept  a  secret."  But  Mr.  Campbell  seems 
to  have  taken  the  place  of  those  ancient  kings,  and  fails 
to  furnish  his  readers  with  anything  in  the  nature  of 
documentary  proof 

A  great  deal  of  his  information,  as  he  frankly  admits, 
has  been  obtained  at  second  hand  from  miscellaneous 
reading  in  books  like  Carnegie's  "  Triumphant  Democ- 
racy," "The  Chautauquan,"  and  magazine  articles.  The 
results  of  the  original  research  among  documents  of 
which  he  says  so  much  in  the  preface  we  look  for  in 
vain,  and  we  find  him  generously  acknowledging  that 
he  is  greatly  indebted  to  Carnegie's  "  Triumphant  De- 

316 


Dutch  Sources 

mocracy"  for  a  large  number  of  valuable  facts  (vol. 
i.  p.  22). 

His  method  of  proof  may  be  called  the  speculative 
method, — the  method  of  suggestion,  presumption,  prob- 
ability. He  wanders  round  and  round  his  subject  with 
telling  anecdotes,  witticisms,  gibes  at  the  ancient  histo- 
rians, and  paeans  to  liberty.  All  European  nations  ex- 
cept Holland  have  been  so  cruel  and  wicked,  and  have 
had  such  ridiculous  laws  and  governments,  that,  as  the 
United  States  is  the  only  other  nation  in  the  world  that 
has  not  been  cruel,  wicked,  and  ridiculous,  the  reader 
may  judge  for  himself  as  to  the  possibility,  if  not  proba- 
bility, and  perhaps  certainty,  of  the  one  being  derived 
from  the  other. 

He  informs  us  at  great  length  that  the  English  are 
prone  to  exaggerate  their  own  merits,  trace  everything 
to  themselves,  and  ignore  the  services  of  other  nations. 
The  writers  of  New  England  have  all  been  men  of  Eng- 
lish origin,  and  would  naturally,  therefore,  be  silent 
about  the  Dutch  sources  and  assign  their  institutions  to 
English  causes.  But  if  New  England  was  so  thoroughly 
permeated  with  Dutch  ideas,  as  he  elsewhere  maintains, 
how  was  it  that  the  writers  escaped  ?  If  the  Dutch  influ- 
ence had  been  powerful  enough  to  create  institutions, 
would  it  not  have  been  powerful  enough  to  compel 
acknowledgment,  or  at  least  an  admission  or  a  com- 
plaint ? 

He  has  a  very  clever  way  of  throwing  out  a  sugges- 
tion which  will  leave  a  significant  impression  on  the 
mind  of  an  ordinary  reader.  Thus,  in  his  preface,  after 
saying  that  in   1563  the  Dutch  were  famous  for  their 

317 


Evolution  of  the  Constitution 

ingenuity  in  inventing  all  sorts  of  machines  for  shorten- 
ing labor,  he  says,  "  Here  is  the  Yankee  of  Europe," 
and  this  hint,  mixed  with  others  of  a  similar  kind,  grad- 
ually builds  up  the  feeling  that  of  two  countries  so  nearly 
alike  one  must  be  the  copy  of  the  other. 

After  wandering  through  hundreds  of  pages  heaping 
up  these  possibilities,  insinuations,  and  suggestions,  and 
doing  it  in  a  manner  irresistibly  bright  and  attractive, 
Mr.  Campbell  has  completely  accomplished  his  pur- 
pose,^— at  least  temporarily, — for  an  untrained  mind  can 
hardly  resist  the  impression  that  America  was  thor- 
oughly Dutch  in  origin  ;  that  our  Constitution,  the  New 
England  township  system,  our  land  laws,  our  customs, 
and  our  general  principles  of  dealing,  conduct,  and  gov- 
ernment are  from  Holland,  not  England  ;  and  one  begins 
to  wonder  how  it  is  that  the  language  still  remains 
English. 

The  book  is  in  its  individual  sentences  very  clear,  but 
the  general  arrangement  is  most  confusing  to  any  one 
who  wants  definiteness  and  accuracy.  It  is  a  mere  col- 
lection of  points  mixed  in  with  a  vast  assemblage  of 
facts  and  anecdotes  taken  from  the  history  of  nearly  the 
whole  world.  There  is  no  regular,  orderly  statement  of 
propositions  to  be  proved ;  no  separate  statement  of 
each  individual  item  of  Dutch  imitation  followed  by  its 
proof,  and  no  thorough  analysis. 

For  example,  why  should  not  that  little  item  of  the 
recording  of  deeds  and  mortgages,  which  he  says  came 
from  Holland,  be  in  a  chapter  or  at  least  a  paragraph  by 
itself,  with  all  that  can  be  said  in  favor  of  the  imitation, 
and  then  done  with  it ;  and  so  on  with  the  next  item  ? 

3«8 


Dutch  Sources 

Why  should  the  recording  item  be  spread  out  in  various 
parts  of  the  book,  with  references  to  it  eveiy  now  and 
then  ?  Why  should  the  careful  reader,  seeking  definite, 
positive  knowledge,  feel  that  he  must  go  through  the 
ten  hundred  and  twenty-one  pages  of  the  two  volumes 
with  a  pencil,  setting  down  any  distinct  item  of  imitation 
he  can  find  and  putting  under  it  any  proof  he  can  collect 
from  the  whole?  If  the  work  had  been  divided  into 
distinct  topics  of  positive  imitations  it  could  all  have 
been  written  in  one  chapter  with  sub-headings  for  each 
imitation,  and  would  hardly  have  extended  much  beyond 
the  limits  of  a  magazine  article. 

In  reading  the  book  one  examines  table  of  contents, 
text,  and  chapter-headings  in  vain  in  the  search  for  a 
definite  division  of  topics,  with  proof  and  argument 
assigned  to  each,  and  it  is  not  until  near  the  end  of 
the  second  volume  that  a  page  (vol.  ii.  p.  465)  is  found 
where  the  author  sums  up,  with  some  degree  of  explicit- 
ness,  the  American  institutions  which  he  thinks  he  has 
proved  were  copied  from  Holland.  I  shall  give  the  list 
in  his  own  words  : 

1.  The  Federal  Constitution  as  a  written  instrument. 

2.  The   provisions   in   this   instrument  placing  checks  on  the 

power  of  the  President  in  declaring  war  and  peace  and 
in  the  appointment  of  judges  and  all  important  execu- 
tive officers. 

3.  The  whole  organization  of  the  Senate. 

4.  Our  State  constitutions. 

5.  Freedom  of  religion. 

6.  Free  press. 

7.  Wide  suffrage. 

8.  Written  ballot. 

319 


Evolution  of  the  Constitution 

9.  Free  schools  for  boys  and  girls. 

10.  The  township  system  (with  its  sequence  of  local  self-govem- 

ment  in  county  and  State). 

11.  The  independence  of  the  judiciary. 

12.  The  absence  of  primogeniture. 

13.  The  subjection  of  land  to  execution  for  debt. 

14.  The  system  of  recording  deeds  and  mortgages. 

15.  Public  prosecutors  for  crime  in  every  county. 

16.  The  constitutional  guarantee  that  every  accused  person  shall 

have  subpoenas  for  his  witnesses  and  counsel  for  his 
defence. 

17.  The  reforms  in  our  penal  and  prison  system. 

18.  The  emancipation  of  married  women. 

19.  The  whole  organization  of  our  public  charitable  and  reforma- 

tory work. 

In  taking  up  the  instances  of  imitation  I  cannot  treat 
them  either  in  the  order  in  which  Mr.  Campbell  has 
summed  them  up  or  in  the  order  in  which  they  occur 
throughout  the  book,  for  neither  order  would  disclose 
the  true  bearings  of  the  subject.  Nor  is  it  necessary  to 
discuss  every  one  of  them,  I  shall  begin  with  No.  10, 
"  The  township  system  (with  its  sequence  of  self-govern- 
ment in  county  and  State),"  because  this  brings  us  at 
once  to  fundamental  principles  and  decides  the  ques- 
tion, which  is,  of  course,  at  the  bottom  of  all  the  others, 
How  did  the  Dutch  influence  reach  America  ? 

It  is  obvious  to  any  one  who  notices  the  way  in  which 
Mr.  Campbell  has  worded  this  item  of  imitation,  "The 
township  system  (with  its  sequence  of  self-government 
in  county  and  State),"  that  it  is  overwhelming  in  its 
effects.  If  it  is  true  that  the  Dutch  established  the 
New  England  township  system  and  that  that  created 
self-government  in  the  counties,  and  that  thence  came 

320 


Dutch  Sources 

State  sovereignty,  the  Dutch  undoubtedly  created  the 
whole  United  States.  If  Mr.  Campbell  could  establish 
that  one  item  No.  lo,  I  for  one  should  be  willing  to  sur- 
render all  the  others.  They  would  not  be  worth  con- 
tending for,  and  it  would  remain  merely  to  call  on  Mr. 
Campbell  to  explain  by  what  accident  it  was  that  our 
language  still  remained  English  and  why  our  courts 
still  continued  to  cite  authorities  from  the  English  law 
reports. 

Mr.  Campbell's  argument  I  understand  to  be  this : 
The  Pilgrim  Fathers,  so  called,  were  a  sect  of  Brownists 
or  Independents  who  were  terribly  persecuted  for  their 
religion  in  England,  and  fled  to  Holland,  where  they 
lived,  first  at  Amsterdam,  afterwards  at  Leyden,  for 
twelve  years.  During  that  time  they  probably  acquired 
a  knowledge  of  Dutch  institutions,  especially  the  Dutch 
towns,  which  governed  themselves  with  more  or  less  in- 
dependence. At  the  end  of  the  twelve  years  about  one 
hundred  of  them  came  to  America  and  settled  on  the 
coast  of  Massachusetts  at  a  place  they  called  New 
Plymouth,  about  fifty  miles  from  Boston. 

About  ten  years  after  their  arrival  a  large  number  of 
English  people  called  Puritans  came  upon  the  coast 
and  settled  in  the  neighborhood  of  Boston.  These  peo- 
ple continued  to  come  for  about  ten  years,  and  vastly 
outnumbered  the  Independents,  or  Pilgrim  Fathers,  who 
had  settled  at  New  Plymouth.  The  new-comers,  or 
Puritans,  were  not  Dutch,  and  had  not,  as  a  class,  been 
in  Holland  ;  but  two  of  them  had, — namely,  Dudley, 
who  was  afterwards  governor,  and  had  been  a  soldier  in 
the  Dutch  army,  and  Hugh  Peters,  a  minister,  who  had 
ai  321 


Evolution  of  the  Constitution 

once  had  a  congregation  in  Holland  ;  and  doubtless 
others  whom  we  have  not  heard  of  had  been  in  Hol- 
land. They  had,  however,  nearly  all  of  them  come 
from  the  southern  and  eastern  parts  of  England,  where, 
half  a  century  before,  large  numbers  of  Dutch  immi- 
grants had  settled.  As  we  find  that  all  these  people  in 
Massachusetts  established  towns  which  governed  them- 
selves in  purely  local  matters,  and  as  there  were  similar 
towns  in  Holland,  the  Massachusetts  town  system  was 
clearly  of  Dutch  origin. 

So  much  for  the  entering  in  of  the  influence.  Mr. 
Campbell  goes  on  to  show  how  it  spread.  People  from 
Massachusetts,  some  from  the  Plymouth  colony,  and 
some  from  the  Puritans,  founded  Connecticut  and  es- 
tablished self-governing  towns,  which  were  also  clearly 
of  Dutch  origin,  because  the  people  who  established 
them  had  been  under  the  Dutch  influence  in  Massa- 
chusetts, and  one  of  these  Connecticut  settlers,  Thomas 
Hooker,  the  minister,  had  lived  for  a  time  in  Holland. 
About  the  same  time  that  these  events  occurred  in 
New  England,  or  soon  after,  the  Dutch  established 
these  same  self-governing  towns  in  their  colony  at  New 
York.  And  from  these  Dutch  sources  in  Massachusetts, 
New  York,  and  Connecticut,  establishing  the  idea  of 
local  self-government  in  a  town,  that  idea  has  spread 
to  the  whole  country,  creating  the  local  self-govern- 
ment of  our  counties  all  over  the  Union  and  the  self- 
government  of  our  States,  or  State  sovereignty,  as  we 
call  it 

This  Dutch  influence  prevailed  not  only  in  Massa- 
chusetts, Connecticut,  and  New  York,  but,  according  to 

322 


Dutch  Sources 

Mr.  Campbell,  in  New  Jersey,  which  was  originally  a 
part  of  the  New  York  Dutch  colony ;  and  it  also  pre- 
vailed in  Pennsylvania  and  Delaware,  because  William 
Penn's  mother  had  been  a  Dutchwoman,  and  Penn 
himself  had  travelled  in  Holland  and  was  familiar  with 
its  language  and  people.  The  northern  and  middle 
Atlantic  States  were  therefore  pervaded  by  this  influ- 
ence, and,  as  those  are  the  States  which  have  in  effect 
created  the  Union  and  given  forth  the  dominating  prin- 
ciples of  American  civilization,  it  is  ridiculous  to  say 
that  our  ideas  and  institutions  are  English.  The  only 
part  of  the  country  where  English  notions  prevailed  was 
the  South,  and  all  it  gave  was  slavery.  Virginia  may 
have  contributed  the  idea  of  the  natural  equality  of 
man,  but  she  borrowed  this  from  the  Roman  law. 

The  Dutch  influence,  being  thus  firmly  established  in 
the  dominating  part  of  the  country,  and  having  evi- 
dently created  the  township  system  with  all  its  conse- 
quences, was  also  fruitful  in  establishing  other  customs, 
laws,  and  institutions.  The  Connecticut  people,  at  their 
first  settlement,  drew  up  a  document  creating  a  legisla- 
ture and  government,  and  this  has  been  called  the  first 
American  written  constitution.  This  idea  of  reducing 
the  principles  or  form  of  government  to  writing  must 
have  been  taken  from  Holland,  because  the  Netherland 
Republic  had  existed  for  about  half  a  century  under  the 
Union  of  Utrecht,  which  was  a  written  constitution. 
These  written  constitutions  became  the  regulation  forms 
for  the  States  after  the  Revolution,  copied,  of  course, 
from  Connecticut's  instrument,  which  was  copied  from 
Holland  ;  and,  as  our  Federal  Constitution  is  written,  it 

3^3 


Evolution  of  the  Constitution 

follows  that,  so  far  as  it  is  a  written  instrument,  it  also 
is  of  Dutch  origin. 

One  would  suppose  that,  having  proved  that  our  local 
self-government  in  towns,  our  State  governments,  our 
State  constitutions  as  written  instruments,  and  our  Na- 
tional Constitution  as  a  written  instrument  were  of 
Dutch  origin,  Mr.  Campbell  would  be  content  But 
he  is  not,  and  he  goes  on  piling  up  the  resemblances. 

Religious  liberty  existed  in  Holland  before  it  was 
established  anjavhere  else  in  Europe.  We  also  find  it 
among  the  Dutch  in  New  York  and  in  the  laws  made 
by  Penn  for  Pennsylvania  :  so  that  the  American  princi- 
ple of  religious  freedom  may  be  said  to  have  come  from 
Holland.  It  is  true  that  in  Massachusetts  we  find  a 
church  established  by  law  and  heresy  punished  with 
death  ;  but  this,  Mr.  Campbell  assures  us,  was  because 
the  Puritans  had  not,  in  this  particular,  imbibed  the  full 
measure  of  the  Dutch  influence. 

Similarly,  we  find  free  schools  in  Holland,  New  Eng- 
land, and  New  York  :  so  that  the  American  public-school 
system  had  its  source  in  the  Netherlands,  and  it  has 
now  filled  the  whole  Union.  So,  also,  the  system  of 
recording  deeds  and  mortgages  was  unknown  in  Eng- 
land, but  was  common  practice  in  the  Netherlands, 
whence  it  was  introduced  into  Massachusetts,  New 
York,  New  Jersey,  and  Pennsylvania,  and  thence  to  the 
whole  country. 

In  England  the  distribution  of  land  among  smajl 
holders  was  fettered  by  primogeniture,  which  has  now 
given  the  soil  of  Great  Britain  into  the  hands  of  a  few 
aristocrats  and  left  the  mass  of  the  people  in  poverty, 

324 


Dutch  Sources 

with  scarcely  space  on  which  to  stand.  The  Dutch  law, 
which  gave  equal  inheritance  to  all  children,  prevailed 
in  New  York,  and  was,  of  course,  well  known  to  William 
Penn  and  the  people  who  settled  New  England.  Hence 
we  have  in  the  United  States  an  absence  of  primogeni- 
ture and  an  easy  and  approximately  equal  distribution 
of  land,  which  has  prevented  grinding  poverty  and  en- 
couraged the  energy  and  enterprise  of  our  people. 

Such  is,  in  brief,  Mr.  Campbell's  argument  And 
now  for  something  on  the  other  side. 

First  of  all,  we  must  have  a  clear  idea  of  the  exact 
nature  of  the  New  England  town  system,  which  Mr. 
Campbell  says  was  introduced  from  Holland.  The  New 
England  town  was  a  little  democracy  of  people  who 
elected  their  own  officers  and  through  them  governed  a 
district  of  land  much  smaller  than  a  county.  Each  town 
also  sent  its  representatives  to  the  general  assembly  of 
the  colony.  It  was  a  system  of  local  government  by 
means  of  small  districts,  each  of  which  had  entire  charge 
of  its  own  affairs.  The  peculiarities  about  it  were  the 
small  size  of  each  district,  the  absolute  control  over  its 
own  affairs,  the  free  voice  and  vote  of  all  the  people  in 
exercising  that  control,  and  their  right  to  be  represented 
as  a  town  in  the  general  assembly. 

But  Mr.  Campbell's  rather  vague  description  of  the 
Dutch  towns  would  not  imply  that  they  had  these  charac- 
teristics at  the  time  the  English  colonies  in  America 
were  settled.  The  most  important  one  of  all — the  free 
suffrage  and  democracy — was  absent  "  In  few,  if  any 
of  them,"  he  says,  "  was  there  an  approach  to  democracy 
in  later  times.     That  had  passed  away  with  the  advance 

325 


Evolution  of  the  Constitution 

of  wealth,  the  rich  merchants  and  manufacturers  who 
secured  the  charters  having  generally  absorbed  the  power 
originally  lodged  in  the  whole  body  of  the  freemen." 
(Vol.  i.  p.  147.) 

Elsewhere  (vol.  ii.  p.  429)  he  says  that  the  free 
suffrage  had  been  retained  in  some  of  the  most  obscure 
provinces  of  the  northeast,  and,  as  the  Pilgrim  Fathers 
who  came  to  Massachusetts  were  not  in  those  provinces 
of  the  Netherlands,  he  has  a  labored  argument  to  show 
how  they  might,  nevertheless,  probably  have  heard 
about  it. 

Apparently  the  only  resemblance  which  the  Dutch 
towns  near  where  the  Pilgrim  Fathers  lived  bore  to  those 
established  in  Massachusetts  was  that  the  six  important 
ones  could  send  representatives  to  the  assembly  of  the 
States.  The  right  of  the  small  towns  to  send  repre- 
sentatives and  their  democratic  government  had  been 
lost  hundreds  of  years  before.  This  makes  the  resem- 
blance somewhat  lame  ;  and  the  argument  is  still  further 
weakened  by  an  admission  in  another  passage  (vol.  i. 
p.  75)  that  the  township  system  prevailed  in  Central  Asia 
and  still  exists  in  Upper  India.  So  the  Dutch  were, 
after  all,  not  its  inventors. 

But  let  us  pass  all  this  for  the  present,  for  we  shall  see 
the  Dutchman's  idea  of  town  government  when  we  come 
to  the  history  of  New  York.  Let  us  suppose,  for  the 
sake  of  argument,  that  the  towns  in  Holland  were  all 
self-governing  and  represented  as  towns  in  the  legisla- 
ture, just  as  Mr.  Campbell  would  like  to  have  them, — 
how  does  he  prove  that  the  Massachusetts  people  imi- 
tated them  ?     He  must  show  some  connecting  Hnk  ;  he 

326 


Dutch  Sources 

must  give  positive  proof  of  imitation,  because  without 
this  it  is  perfectly  possible  that  the  people  of  New  Eng- 
land developed  their  town  system  out  of  natural  condi- 
tions, as  the  people  of  Central  Asia  or  of  Upper  India, 
or  the  Dutch  themselves,  developed  towns  to  suit  their 
purpose. 

Mr.  Campbell,  however,  neither  quotes  nor  cites  any 
document,  pamphlet,  letter,  or  writing  of  any  kind  in 
which  any  of  the  people  who  settled  Massachusetts  ex- 
pressed a  liking  for  the  Dutch  town  system  or  urged  its 
adoption  in  the  colony.  If  they  were  so  infected  by  the 
Dutch  influence,  would  they  not  have  said  something 
about  it  ?  Would  they  not  have  argued  in  its  favor  and 
urged  its  extension  ?  They  were  great  writers.  Many 
of  them  kept  diaries  and  journals  that  have  come  down 
to  us.  We  have  also  their  letters,  the  pamphlets,  and 
the  books  they  wrote,  all  preserved  with  the  scrupulous 
care  with  which  Massachusetts  guards  every  scrap  of 
paper  relating  to  her  history.  How  was  it  that  none  of 
the  Cottons  or  Mathers — men  of  such  vast  learning,  the 
authors  of  so  many  books  and  essays  on  all  sorts  of  sub- 
jects— never  touched  on  Holland  ?  How  is  it  that  in 
all  the  writings  of  Massachusetts,  from  beginning  to  end, 
there  is  nothing  Mr.  Campbell  can  quote  to  show  a 
Dutch  influence,  not  merely  in  this  township  question, 
but  in  other  things  or  in  general  ? 

If  there  is  nothing  that  shows  Dutch  influence  in  gen- 
eral, would  not  the  introduction  of  some  special  Dutch 
institution  like  the  towns  have  aroused  comment  or 
resistance,  and  would  there  not  at  least  be  something  to 
quote  on  this  point  ?     Even  Mr.  Campbell  does  not  con- 

327 


Evolution  of  the  Constitution 

tend  that  eveiy  one  of  the  Puritans  was  hterally  an  out- 
and-out  Dutchman.  If  there  was  even  a  small  minority 
of  out-and-out  Englishmen  in  the  colony,  would  they 
not  have  protested  against  the  introduction  of  a  foreign 
method  of  government,  and,  like  those  minorities  that 
followed  Roger  Williams  or  Anne  Hutchinson,  raised  a 
controversy  about  it  of  which  there  would  at  least  be 
some  scrap  of  evidence? 

As  a  matter  of  fact,  we  all  know  that  there  were  in 
the  colony  from  the  very  beginning  Church  of  England 
people  and  others  who  objected  most  strenuously  to  the 
Puritan  methods  of  government,  and  sent  home  reports 
finding  all  the  fault  they  could  think  of.  Other  dis- 
gruntled persons  went  to  England  in  person  to  make 
complaints.  Many  of  these  complaints  were  addressed 
to  royalists  and  to  the  Crown  with  the  intention  of  bring- 
ing down  vengeance  on  the  Puritans  of  Massachusetts 
and  depriving  them  of  their  charter.  They  continued 
to  be  made  for  fifty  years,  and  in  the  end  were  success- 
ful, and  the  charter  was  annulled  in  1684. 

Now,  is  it  possible  that,  among  all  these  complaints 
made  by  Tories,  none  can  be  found  to  the  effect  that 
the  colonists  had  adopted  a  foreign  system  of  local  gov- 
ernment? Charles  II.  and  James  II.  had  no  love  for 
Holland,  their  enemy,  and,  in  the  end,  the  destroyer  of 
their  dynasty  and  house.  What  appeal  to  their  resent- 
ment against  Puritan  Massachusetts  would  have  been 
more  effective  than  to  tell  them  that  the  colony  was 
adopting  the  laws  and  methods  of  Holland  ? 

Mr.  Campbell  meets  none  of  these  points.  In  fact, 
he  admits,  in  the  fullest  manner,  not  only  that  there  was 

328 


Dutch  Sources 

no  general  resemblance  to  Holland  in  Massachusetts, 
but  that  in  most  respects  the  colony  was  the  very  re- 
verse of  Holland  in  the  things  for  which  Holland  was 
most  famous.  Freedom  of  religion,  freedom  of  the 
press,  separation  of  church  and  state,  and  humane  laws 
were  the  great  Dutch  principles  which  Mr.  Campbell 
says  were  copied  by  the  United  States.  But  Massachu- 
setts punished  heretics  with  death  or  banishment,  had 
the  severest  sort  of  censorship  of  the  press,  a  church 
established  by  law,  the  right  to  vote  and  hold  office 
confined  to  church-members,  a  set  of  the  most  bloody 
and  cruel  laws,  punishing  more  than  twenty  offences 
with  death ;  and,  as  is  well  known,  she  kidnapped  the 
Indians  and  sold  them  as  slaves,  killed  hundreds  of  peo- 
ple for  witchcraft,  whipped  hundreds  of  Quakers  at  the 
cart's  tail,  and  hung  four  of  them  for  persisting  in  their 
religious  belief. 

But  a  little  difficulty  like  this  is  nothing  to  a  man 
of  Mr.  Campbell's  ingenuity,  and,  accordingly,  we  find 
him  saying  in  explanation  (vol.  ii.  p.  415),  "But  at 
this  period  she  was  in  a  few  respects  less  advanced 
than  her  sister  colonies,  simply  because  she  had  ab- 
sorbed less  from  the  Netherland  Republic." 

In  other  words,  the  colony  where,  as  Mr.  Campbell 
contends,  the  Netherland  influence  entered — the  colony 
where  there  was  more  direct  Netherland  influence  than 
in  any  other  part  of  the  country  except  New  York — 
was  less  like  Holland  and  had  fewer  of  the  great  Nether- 
land principles  than  parts  of  the  country  where  there 
was  no  Netherland  influence  at  all. 

But  let  us  do  some  of  Mr.  Campbell's  work  for  him, 

329 


Evolution  of  the  Constitution 

and  examine  the  early  writings  of  Massachusetts  to  see 
what  they  say  of  this  Dutch  influence,  and  also  what 
they  say  about  the  beginning  of  the  town  system.  The 
first  and  most  important  is  Bradford's  "  History  of 
Plymouth  Plantation." 

Bradford  was  the  leader  of  the  Pilgrim  Fathers.  He 
started  with  them  in  England  when  they  fled  to  Hol- 
land. He  lived  with  them  during  the  twelve  years' 
sojourn  in  Amsterdam  and  Leyden.  He  came  with 
them  to  Massachusetts,  assisted  in  founding  the  settle- 
ment at  New  Plymouth,  was  elected  their  governor 
over  and  over  again,  and  remained  with  them  until  his 
death  in  1657.  He  was  a  man  of  good  education, 
familiar  with  French,  Latin,  Greek,  and  Hebrew,  and  a 
student  of  history  and  theology.  His  "  History  of 
Plymouth  Plantation"  is  the  history  of  an  eye-witness, 
and,  as  it  goes  very  much  into  details,  it  is  an  authority 
of  the  highest  importance.  If  there  was  strong  Dutch 
influence  among  his  people  after  they  came  to  Massa- 
chusetts, it  would  surely  show  itself  in  his  book. 

But  when  we  read  the  book  there  is  nothing  Dutch 
about  it  Indeed,  when  we  consider  that  he  and  his 
people  had  been  in  the  Low  Countries  for  twelve  years, 
it  is  surprisingly  free  from  anything  of  the  sort ;  and 
our  first  thought  is,  that,  as  usually  happens  when 
people  of  mature  years  sojourn  in  a  foreign  country, 
very  little  impression  had  been  made  upon  their  minds, 
and  they  remained  the  out-and-out  Englishmen  they 
had  been  bom  and  bred.  If  the  Pilgrim  Fathers  had 
gone  to  the  Netherlands  when  they  were  children,  and 
had  grown  up  in  the  country,  their  ideas  and  conduct 

330 


Dutch  Sources 

might  have  been  different.  But  in  the  whole  book 
there  is  only  one  passage  showing  any  liking  for  Dutch 
ways  or  giving  a  Dutch  reason  for  anything,  and  that 
is  an  account  of  the  first  marriage-ceremony  that  was 
performed  : 

"  May  12  was  the  first  marriage  in  this  place  which  according 
to  the  laudable  custom  of  the  Low  Countries,  in  which  they  had 
lived,  was  thought  most  requisite  to  be  performed  by  the  magis- 
trate, as  being  a  civil  thing,  upon  which  many  questions  about 
inheritances  do  depend  with  other  things  most  proper  to  their 
cognizance  and  most  consonant  to  the  Scriptures,  Ruth  4,  and 
nowhere  found  in  the  Gospel  to  be  laid  on  the  ministers  as  a  part 
of  their  office.  This  decree  or  law  about  marriage  was  published 
by  the  States  of  the  Low  Countries  A.D.  1590.  That  those  of 
any  religion  after  lawful  and  open  publication  coming  before  the 
Magistrates  in  the  Town  or  State  House  were  to  be  orderly  (by 
them)  married  to  one  another.  Peters  Hist.  Fol.  1029.  And 
this  practice  hath  continued  amongst,  not  only  them,  but  hath 
been  followed  by  all  the  famous  churches  of  Christ  in  these  parts 
to  this  time.  Ano.  1646."  (Mass.  Hist.  Coll.,  4th  series,  vol. 
iii.  p.  loi.) 

I  cannot  tell,  of  course,  whether  Mr.  Campbell  knew 
of  this  passage  ;  but  at  any  rate  he  does  not  quote  it,  and 
it  would  help  him  very  little.  He  does  not  contend, 
so  far  as  I  know,  that  the  Dutch,  through  the  Pilgrim 
Fathers,  or  in  any  other  way,  introduced  into  this  coun- 
try the  custom  of  being  married  before  a  magistrate 
instead  of  before  a  minister  of  religion.  It  would  be 
in  vain  to  make  such  a  contention,  for  no  such  custom 
exists.  Our  people  are  almost  universally  married  by 
ministers  of  religion,  although  marriages  before  magis- 
trates, mayors,  or  competent  witnesses  of  any  kind  are 

33» 


Evolution  of  the  Constitution 

usually  held  valid,  as  they  were  in  the  old  common  law 
of  England. 

So  far  cis  it  goes,  this  passage  from  Bradford  would 
prove  that  the  Pilgrim  Fathers  attempted  to  introduce 
a  Dutch  method  which  has  been  rejected  by  the  Ameri- 
can people.  And  the  passage  is  the  more  noteworthy 
on  this  account,  because  it  is  a  rebuke  to  all  those 
spread-eagle  writers  who  assume  that  everything  that 
was  done  near  Plymouth  Rock  spread  out  into  the  whole 
United  States,  and  must  be  traced  back  to  the  rock  as 
a  cause. 

The  passage  is  the  only  one  I  know  of  in  the  whole 
range  of  Massachusetts  literature  that  gives  a  Dutch  ori- 
gin for  anything.  I  was  once  quite  familiar  with  many 
of  the  original  authorities  of  the  colonial  history  of  Massa- 
chusetts, and  I  can  remember  nothing  Dutch  in  them. 
I  have  not  gone  over  all  of  them  again  to  write  this 
chapter,  for  it  would  be  a  great  labor,  and  is  not  neces- 
sary. But  I  have  gone  over  those  which  relate  to  the 
first  settlement,  the  time  when  the  town  system  was 
introduced,  and  the  twenty  years  that  followed.  These 
are  the  ones  which  are  relevant  and  essential,  for,  if 
there  was  as  much  Dutch  influence  among  the  colonists 
as  Mr.  Campbell  asserts,  it  would  have  shown  itself  at 
once,  certainly  within  the  first  twenty  years.  If  there 
are  no  signs  of  it  within  those  twenty  years,  there  is,  in 
my  opinion,  no  proof  of  it. 

I  have  selected  the  first  twenty  years — that  is,  from 
1620  to  1640 — because  after  that  immigration  ceased, 
and  there  were  no  more  important  additions  to  the 
population  by  migration  until  long  after  the  Revolution. 

332 


Dutch  Sources 

So  far  as  the  Plymouth  Plantation  is  concerned,  those 
twenty  are  more  than  covered  by  Bradford's  history. 
But  the  Plymouth  colony  was  very  small  and  unsuccess- 
ful, and  the  large  majority  of  the  Massachusetts  popula- 
tion was  made  up  of  the  Puritans,  who,  ten  years  after 
the  arrival  of  the  Pilgrims,  came  and  settled  in  the 
neighborhood  of  Boston.  They  increased  very  rapidly 
for  ten  or  more  years  by  immigration  until  there  were 
about  twenty  thousand,  and  after  that  their  increase  was 
also  rapid  by  births. 

These  people  were  direct  from  England,  and  had 
never  sojourned  in  Holland.  But,  as  Mr.  Campbell  says 
that  they  had  come  from  the  southern  and  eastern  parts 
of  England,  to  which  many  Hollanders  had  migrated 
half  a  century  before,  it  is  necessary  to  examine  an  au- 
thority which  will  include  them.  There  is  an  excellent 
one, — "Winthrop's  Journal," — which  has  sometimes 
been  published  as  "Winthrop's  History  of  New  Eng- 
land." It  is  much  more  voluminous  and  detailed  than 
Bradford's  history,  and  comes  down  to  a  later  time. 

Winthrop  was  an  accomplished  man  of  some  means, 
who  came  out  with  the  first  of  the  Puritans,  was  their 
first  governor,  and  was  re-elected  governor  again  and 
again  for  many  years.  He  was  a  lawyer  by  education, 
and  at  the  time  of  his  arrival  in  the  colony  was  forty- 
three  years  old,  in  the  prime  of  life,  keen,  active,  inter- 
ested in  everything,  and  recorded  day  by  day  in  his 
journal  minute  details  of  events,  and  especially  contro- 
versies and  disputes,  in  which  he  usually  gave  the  argu- 
ments of  both  sides.  I  have  examined  this  book  from 
beginning  to  end,  and,  if  it  contains  anything  showing 

333 


Evolution  of  the  Constitution 

the  slightest  trace  of  Holland  or  Dutch  influence,  or  the 
slightest  trace  of  any  institution,  custom,  or  law  estab- 
lished for  Dutch  reasons,  I  cannot  find  it 

So  it  stands  that  there  is  just  one  solitary  passage  in 
Bradford's  history  giving  a  Dutch  reason  for  establishing 
the  custom  of  marriage  by  magistrate  instead  of  by 
minister,  and  this  a  custom  which  was  not  accepted  by 
the  American  people.  As  Bradford  in  this  instance  gave 
his  reason  for  the  custom,  it  is  fair  to  conclude  that  if 
anything  else  had  been  established  for  a  Dutch  reason 
he  would  have  said  so,  and  this  conclusion  is  strength- 
ened when  we  find  that  in  describing  the  method  of 
allotting  land  he  gives  a  reason  for  it,  but  instead  of 
being  Dutch  it  is  a  Roman  reason. 

I  shall  quote  this  passage,  but  before  I  do  so  I  wish 
to  say  that  Winthrop  also  gives  reasons  for  the  establish- 
ment of  many  things,  and  they  are  usually  drawn  from 
the  Old  Testament,  which  was  the  chief  guide  of  the 
Massachusetts  people  in  all  matters  of  law  and  govern- 
ment. It  was  a  rule  with  the  magistrates  that  when  no 
law  could  be  found  applicable  to  a  case  it  must  be 
decided  according  to  the  Word  of  God.  From  the  Old 
Testament  were  drawn  their  reasons  for  banishing  Anne 
Hutchinson  and  Roger  Williams,  hanging  the  witches, 
and  persecuting  the  Quakers.  To  give  a  reason  for 
everything  they  did  and  give  it  fully  and  minutely  was 
one  of  their  most  prominent  characteristics,  and  I  think 
that  any  one  who  reads  the  elaborateness  of  the  argu- 
ments used  in  "  Winthrop's  Journal"  and  elsewhere  must 
be  impressed  with  the  thought  that  if  there  had  been  a 
Dutch  influence  at  work  among  these  people  it  would 

334 


Dutch  Sources 

have  shown  itself  unequivocally.  Moreover,  they  were 
very  original  in  all  their  methods,  and  Mr.  Campbell 
is,  I  think,  the  first  person  who  has  ever  charged  them 
with  plagiarism. 

The  passage  I  wish  to  quote  from  Bradford  in  which 
the  land  allotment  seems  to  remind  him  of  Rome  is  a 
very  important  one  : 

"  That  they  might  therefore  encrease  their  tillage  to  better  ad- 
vantage, they  made  suite  to  the  Governor  to  have  some  portion  of 
land  given  them  for  continuance,  and  not  by  yearly  lotte,  for  by 
that  means,  that  which  the  more  industrious  had  brought  into 
good  culture  (by  much  pains)  one  year,  came  to  leave  it  the  next, 
and  often  another  might  enjoy  it ;  so  as  the  dressing  of  their  lands 
were  the  more  sleighted  over,  and  the  less  profit.  Which  being 
well  considered,  their  request  was  granted.  And  to  every  person 
was  given  only  one  acre  of  land,  to  them  and  theirs,  as  near  the 
town  as  might  be,  and  they  had  no  more  till  the  seven  years  were 
expired.  The  reason  was,  that  they  might  be  kept  close  together 
both  for  more  safety  and  defence,  and  the  better  improvement  of 
the  general  employments.  Which  condition  of  theirs  did  make 
me  often  think,  of  what  I  had  read  in  Pliny  of  the  Romans  first 
beginnings  in  Romulus  time.  How  every  man  contented  himself 
with  two  acres  of  land,  and  had  no  more  assigned  them.  And 
chap  three.  It  was  thought  a  great  reward  to  receive  at  the  hands 
of  the  people  of  Rome  a  pint  of  corn.  And  long  after,  the  great- 
est present  given  to  a  Captain  that  had  got  a  victory  over  their 
enemies  was  as  much  ground  as  they  could  till  in  one  day.  And 
he  was  not  counted  a  good,  but  a  dangerous  man,  that  would  not 
content  himself  with  seven  acres  of  land.  As  also  how  they 
pound  their  corn  in  mortars,  as  these  people  were  forced  to  do 
many  years  before  they  could  get  a  mill."  (Mass.  Hist.  Coll.,  4th 
series,  vol.  iii.  167.) 

Now  I  have  quoted  this  passage  not  only  for  the 
suggestion  about  Rome  which  it  contains,  but  because 

335 


Evolution  of  the  Constitution 

it  shows  the  origin  of  the  towns.  **  Every  person  was  given 
only  one  acre  of  land,"  he  says,  and  "as  near  the  town 
as  might  be,"  and  "  the  reason  was  that  they  might  be 
kept  close  together  both  for  more  safety  and  defence  and 
the  better  improvement  of  the  general  employments." 

This  is  the  earliest  mention  of  the  towns  in  any  Mas- 
sachusetts writing.  The  event  of  the  allotment  of  land 
of  which  he  speaks  happened  in  1624,  four  years  after 
the  colony  was  founded,  and  he  refers  to  the  town  as  in 
existence,  which  of  course  it  was  ;  for  when  the  Pilgrims 
landed  they  built  a  town  of  log  huts,  and  they  dared  do 
nothing  else.  The  barren  nature  of  the  country  and  the 
immediate  hostility  of  the  Indians  forbade  them  to  spread 
out  They  must  keep  together  for  mutual  defence  and 
for  their  fishing  and  trade  on  the  sea. 

At  first  they  held  their  land  in  common,  and  it  was 
cultivated  for  the  public  benefit  But  at  best  their  agri- 
culture was  merely  the  cultivation  of  garden  patches. 
When  they  passed  beyond  the  communism  and  garden 
stage  the  people  still  lived  in  the  town  and  went  out  to 
cultivate  their  lots,  which,  as  Bradford  says,  were  kept 
as  near  the  town  as  possible.  All  other  towns  in  Mas- 
sachusetts, and,  for  that  matter,  in  New  England,  were 
arranged  on  the  same  plan,  not  because  of  anything  in 
Holland  or  Rome,  but  because  it  was  a  necessity. 

When  we  examine  "Winthrop's  Journal"  we  find  two 
passages  confirming  this  view.  A  few  days  after  his 
arrival  with  the  first  ship-load  of  Puritans  that  were  to 
begin  the  second  colony,  which  in  the  course  of  years 
absorbed  the  Plymouth  people,  he  made  an  entry  as 
follows  : 

336 


Dutch  Sources 

'•  December  6th,  1630.  The  Governor  and  most  of  the  assist- 
ants and  others  met  at  Roxbury,  and  there  agreed  to  build  a  town 
fortified  upon  the  neck  between  that  and  Boston. "  ("  Winthrop's 
History  of  New  England,"  Savage's  edition,  vol.  i.  p.  38.) 

Practical  difficulties,  such  as  want  of  water,  prevented 
the  carrying  out  of  this  plan,  and  a  few  days  after  we 
have  another  entry : 

"Dec.  21.  We  met  again  at  Watertown,  and  there,  upon 
view,  of  a  place  a  mile  beneath  the  town,  all  agreed  it  a  fit  place 
for  a  fortified  town."     {Id.,  vol.  i.  p.  39.) 

In  each  instance  he  speaks  of  a  "fortified"  town  ;  not 
a  mere  straggling  settlement,  but  something  more  com- 
pact, complete,  and  self-sustaining ;  the  sort  of  com- 
munity that  every  one  who  landed  on  that  stern  coast 
knew  to  be  a  prime  necessity. 

And  so  we  have  both  Bradford  and  Winthrop  men- 
tioning the  town,  referring  to  it  as  something  which  was 
a  matter  of  course,  Bradford  giving  reasons  for  keeping 
all  the  people  close  to  the  town,  even  when  they  were 
cultivating  their  land,  and  neither  he  nor  Winthrop  re- 
ferring to  Holland  in  any  way  whatever.  On  the  con- 
trary, Bradford  says  that  the  arrangement  about  the 
land  reminds  him  of  what  he  had  read  of  Rome. 

In  Virginia  the  natural  conditions  enabled  the  reverse 
plan  to  be  followed.  The  mildness  of  the  climate  and 
the  richness  of  the  soil  soon  revealed  that  there  was  not 
only  a  livelihood,  but  wealth,  to  be  gained  by  spreading 
out  and  cultivating  large  tracts  of  land.  This  was  the 
natural  method  in  all  the  southern  colonies,  and,  ac- 
cordingly, the  county  became  the  unit  of  local  govern- 
ment instead  of  the  township  of  New  England. 
M  337 


Evolution  of  the  Constitution 

The  township  system  would  have  been  an  impossi- 
bility in  the  South,  where  a  single  farm  was  often  as 
large  as  a  New  England  township  ;  and  farther  south 
than  Virginia  several  townships  could  have  been  put 
within  a  single  plantation.  The  county  system  became 
an  inevitable  necessity,  and  we  find  it  everywhere  in  the 
South,  becoming  of  less  absolute  importance  as  we  go 
north,  until,  in  Pennsylvania,  we  have  a  combination  of 
the  two  systems, — town  and  county. 

But  it  is  to  be  observed  that  the  first  settlers  in  Vir- 
ginia huddled  together  in  Jamestown  and  held  their 
land  in  common  like  the  Pilgrim  Fathers ;  and  for  the 
same  reason.  They  feared  the  Indians  ;  and  at  first 
they  gained  their  livelihood  from  the  fish  in  the  water 
and  vast  quantities  of  wild  fowl  along  the  shores  and  a 
few  little  patches  of  land,  which  they  cultivated  more 
as  gardens  than  as  farms.  But  as  soon  as  they  learned 
the  natural  capacity  of  the  country  they  spread  out  far 
and  wide.  Their  energies  became  absorbed  with  in- 
land occupations,  and  they  cared  little  for  the  sea  and 
ships. 

The  New  Englanders,  on  the  other  hand,  were  obliged 
to  continue  as  they  had  begun.  They  were  compelled 
to  devote  themselves  to  the  sea  more  and  more  or  starve. 
The  difficulties  with  the  Indians  never  ceased,  and  be- 
fore long  the  alliance  of  the  French  and  Indians  made 
the  danger  continuous  down  almost  to  the  time  of  the 
Revolution.  Town  life  Wcis  therefore  a  necessity,  both 
for  safety  and  for  trade. 

As  the  Massachusetts  people  advanced  into  the  inte- 
rior they  moved  by  towns,  for  the  same  reasons  and 

338 


Dutch  Sources 

with  the  same  caution  that  they  had  established  towns 
on  the  sea-coast  The  town  Weis  usually  set  on  a  hill- 
top, or  on  high  land.  The  people  went  out  from  it  to 
cultivate  their  lots,  and  there  was  a  law  that  no  dwelling 
in  any  new  plantation  should  be  situated  more  than  a 
mile  from  the  meeting-house.  (Palfrey's  "  New  Eng- 
land," vol.  i.  p.  434.) 

The  advancement  of  the  town  system  into  the  inte- 
rior, of  course,  gave  some  protection  to  the  sea-coast 
towns  against  the  Indians,  but  they  continued  in  their 
self-governing  character  because  the  other  conditions 
remained  unchanged  and  the  people  were  all  engaged 
in  trade,  commerce,  and  ship-building.  Their  agri- 
cultural interests  were  slight,  and,  from  the  nature  of 
the  soil  and  climate,  incapable  of  being  much  enlarged. 
But  commerce,  ship-building,  and  the  carrying  trade 
of  the  world  were  capable  of  indefinite  expansion,  and 
to  these  the  people  devoted  their  utmost  energies,  with 
the  result  we  all  know. 

That  whatever  people  lived  in  New  England  would 
necessarily  be  merchants,  fishermen,  and  ship-owners, 
and  therefore  townsmen,  was  clearly  foreseen  in  the 
earliest  times,  and  the  reasons  for  the  origin  of  the 
towns  which  I  have  advanced  receive  very  strong  sup- 
port from  a  pamphlet  issued  in  1622  by  the  Council  for 
New  England,  entitled  "A  Brief  Relation  of  the  Dis- 
covery and  Plantation  of  New  England." 

This  Council  was  a  company  chartered  by  the  Crown, 
and  its  full  title  was  "The  Council  Established  at 
Plymouth,  in  the  County  of  Devon,  for  the  Planting, 
Ordering,  Ruling,  and  Governing  of  New  England  in 

339 


Evolution  of  the  Constitution 

America."  The  Plymouth  colony  of  the  Pilgrim  Fathers 
was  within  its  domain,  and  obtained  from  it  a  patent  for 
its  land.  The  Council  intended  to  manage  its  great 
domain  of  New  England  for  profit  and  the  glory  and 
extension  of  the  British  Empire,  and  the  pamphlet  was 
intended  to  describe  the  country  and  encourage  settlers. 
It  begins  with  an  account  of  the  many  voyages  of  dis- 
covery sent  out  under  the  auspices  of  the  Council ;  then 
follows  a  description  of  the  climate,  animals,  and  vari- 
ous products,  and  the  last  chapter  tells  of  the  sort  of 
government  the  Council  intends  to  enforce.  Beginning 
with  praise  of  monarchical  forms,  the  chapter  goes  on  to 
show  how  the  people  will  nevertheless  have  full  repre- 
sentation in  making  laws.  And  then  comes  the  follow- 
ing paragraph  : 

"And  there  is  no  less  care  to  be  taken  for  the  trade  and  pub- 
lique  commerce  of  merchants  whose  government  ought  to  be 
within  themselves,  in  respect  of  the  several  occasions  arising  be- 
tween them,  the  tradesmen  and  other  the  Mechanicks,  with  whom 
they  have  most  to  do  ;  and  who  are  generally  the  chief  inhab- 
itants of  great  cities,  and  towns,  in  all  parts  ;  it  is  likewise  pro- 
vided, that  all  the  cities  in  that  territory,  and  other  inferior  towns 
where  tradesmen  are  in  any  numbers,  shall  be  incorporated  and 
made  bodies  politique,  to  govern  their  affairs  and  people  as  it  shall 
be  found  most  behoveful  for  the  publique  good  of  the  same  ;  ac- 
cording unto  the  greatness  or  capacity  of  them,  who  shall  be 
made  likewise  capable  to  send  certain  their  deputies,  or  Burgesses 
to  this  publique  assembly,  as  members  thereof,  and  who  shall 
have  voices  equal  with  any  of  the  rest." 

It  seems  to  me  that  this  passage  settles  the  question 
beyond  any  reasonable  doubt  Here  we  have  a  council 
of  persons,  many  of  them  noblemen,  all  of  them  living 

340 


Dutch  Sources 

in  England,  in  no  way  connected  with  Holland,  and  yet 
before  the  New  England  town  system  had  come  into 
existence  they  recommended  self-governing  towns  and 
town  representation  as  part  of  the  government  of  the 
country.  They  give  their  reasons  for  it  Merchants  and 
traders  must  necessarily  live  in  towns,  and  not  only  ought 
they  to  be  allowed  to  rule  themselves  in  their  own  local 
affairs,  but  their  towns  should  have  representation  as 
towns  in  the  legislative  assembly  of  the  country. 

The  passage,  it  will  be  observed,  recommends  two 
essentials,  which  afterwards  became  the  characteristic 
features  of  the  New  England  town  system, — namely, 
that  the  towns  should  be  independent,  and  that  they 
should  be  represented  as  towns  in  the  legislature. 

If  any  one  has  a  fancy  for  fixing  upon  any  one  passage 
or  place  as  the  origin  of  the  New  England  towns,  there 
it  is.  But  I  do  not  like  that  way  of  putting  it  The 
New  England  towns  originated  in  the  necessities  and 
circumstances  of  the  country, — necessities  and  circum- 
stances which  the  Council,  the  settlers,  and  every  one 
saw  who  became  familiar  with  the  land  ;  and  it  cannot 
be  said  that  any  one  man  or  set  of  men  had  the  honor 
of  the  invention. 

The  Council  of  New  England  saw  that  the  colonists 
would  of  course  be  traders  and  fishermen,  dealing  in 
ships,  fish,  lumber,  and  furs  ;  agriculture  would  be  of 
little  importance  ;  and  the  principal  part  of  the  people 
would  live  in  towns  on  the  sea-coast,  some  of  them  large 
towns  ;  and  many  of  the  people  would  become  great 
merchants.  They  not  only  knew  this,  but  they  were 
aware  that  every  one  else  who  thought  of  going  to  New 

341 


Evolution  of  the  Constitution 

England  knew  it ;  and  unless  they  made  the  govern- 
ment of  the  country  attractive  to  this  merchant  class 
and  gave  them  special  privileges,  they  would  not  go. 

There  was  nothing  new  in  a  town  governing  itself  and 
becoming  a  political  entity  of  more  or  less  local  inde- 
pendence. The  idea  is  a  simple  and  natural  one,  spring- 
ing up  instantly  when  circumstances  suggest  it  as  valu- 
able to  accompHsh  a  result  History  is  full  of  instances, 
— the  Greek  towns,  Rome,  the  free  cities  of  the  Middle 
Ages,  as  well  as  the  towns  of  Holland.  But  the  Council 
of  New  England  needed  no  assistance  from  such  sources 
any  more  than  did  the  captains  and  sailors  who  visited 
the  New  England  coast  and  saw  and  reported  the  evi- 
dent and  only  way  of  settling  and  living  upon  it 

When  we  look  into  the  history  of  the  Massachusetts 
laws  relating  to  the  towns  we  find  that  the  towns  existed 
before  any  laws  were  made  about  them.  They  sprang 
up  naturally,  instantly,  and  spontaneously  wherever  a 
company  of  settlers  pitched  upon  a  tract  of  land  as  suit- 
able for  their  purpose. 

Palfrey,  in  his  history  of  New  England,  gives  us  the 
history  of  the  laws  very  clearly.  The  first  record  is  in 
1630,  when  Boston,  Charlestown,  and  Watertown  were 
given  their  names.  The  next  year  each  town  is  required 
to  provide  its  inhabitants  with  arms, — a  significant  re- 
quirement in  view  of  the  circumstances  already  men- 
tioned. In  1635  th^  general  court,  after  saying  that 
"  particular  towns  have  many  things  which  concern  only 
themselves,"  goes  on  to  regulate  them  in  some  general 
matters.  In  Charlestown  it  was  found  that  there  was 
"great  trouble  and  charge  of  the  inhabitants  by  reason 

342 


Dutch  Sources 

of  the  frequent  meeting  of  the  townsmen  in  general," 
and  because  a  large  body  in  mass-meeting  could  not 
properly  transact  numerous  details  ;  and  so  it  was  de- 
cided to  appoint  eleven  men  to  attend  to  the  town's 
affairs.  Other  towns,  as  they  grew  large,  adopted  the 
same  plan,  and  the  men  chosen  for  this  purpose  became 
gradually  known  as  the  selectmen. 

By  the  year  1635  the  town  system  was  settled  and 
established,  and  any  one  who  wishes  to  prove  a  Dutch 
influence  must  prove  it  to  have  been  at  work  before  that 
year, — that  is,  between  the  years  1620  and  1635.  But 
there  is  nothing  in  the  laws  or  in  any  other  contempora- 
neous document  to  show  the  slightest  trace  of  Dutch 
feeling.  In  fact,  every  step  of  the  development,  so  far 
as  it  can  be  traced,  has  all  the  characteristics  of  an  in- 
digenous growth. 

The  discussion  of  the  subject  would,  however,  be  in- 
complete without  a  further  consideration  of  some  of 
Mr.  Campbell's  arguments.  He  is  not  satisfied  with  the 
Dutch  influence  which  he  supposes  was  so  strong  among 
the  people  of  the  Plymouth  colony,  but  attempts  to  show 
that  the  Puritans,  who  came  afterwards  and  settled  in 
the  neighborhood  of  Boston,  were  also  under  that  in- 
fluence. 

These  Puritans  came  direct  from  England  and  had 
never  been  in  Holland.  They  were  numerous,  powerful, 
and  rapidly  filled  the  country,  and  there  is  not  a  scrap  of 
writing  by  any  one  of  them  to  show  that  they  admired 
Dutch  methods  or  were  affected  by  Dutch  influence. 
But  this  is  a  mere  trifle  for  Mr.  Campbell,  and  a  few  of 
his  clever  sentences  dispose  of  it : 

343 


Evolution  of  the  Constitution 

••  Most  of  the  men  who  founded  this  colony  emigrated  from  the 
eastern  and  southern  counties  of  England,  in  which,  as  we  have 
seen,  Cromwell  raised  his  army  ;  the  counties  in  which  a  hundred 
thousand  Netherland  refugees  had  taken  up  their  residence  half 
a  century  before,  and  which  always  had  the  most  intimate  rela- 
tions with  the  Dutch  Republic.  All  of  these  men  were  acquainted 
with  Netherland  institutions.  Some  of  them,  we  know,  had 
passed  years  in  Holland.  Governor  Dudley,  for  example,  had 
been  a  soldier  in  the  Dutch  army.  The  famous  clergyman,  Hugh 
Peters,  presided  over  a  congregation  at  Rotterdam  from  1623  to 
1635,  ^^^  there  were  doubtless  many  others  among  the  rank  and 
file  unknown  to  history  who  had  also  lived  in  that  asylum  of  the 
persecuted." 

This  is  one  of  the  most  charming  passages  in  his  book, 
and,  for  the  boldness  and  at  the  same  time  subtlety  of 
its  assumptions,  can  hardly  be  equalled  in  all  literature. 
"Most  of  the  men,"  he  says,  "who  founded  this  colony 
came  from  the  eastern  and  southern  counties  of  Eng- 
land." That  is  very  likely.  A  glance  at  the  map  shows 
that  this  delightfully  vague  phrase,  "the  eastern  and 
southern  counties,"  includes  fully  half  of  England.  In 
the  north  England  is  very  narrow,  but  in  the  south  it 
spreads  out  very  wide.  A  majority  of  the  people  have 
always  lived  in  the  south  of  it,  and  London  itself  has 
always  been  in  the  southern  and  eastern  counties.  In 
other  words,  Mr.  Campbell  says  that  the  Massachusetts 
Puritans  came  from  those  parts  of  England  where  the 
majority  of  the  English  people  lived  ;  and  I  suppose  it 
is  not  worth  while  to  dispute  this  assertion. 

His  next  assertion  is  that  fifty  years  before  a  hundred 
thousand  Netherlanders  had  taken  refuge  in  those  "  east- 
ern and  southern  counties."  Well,  suppose  they  had, 
where  is  the  proof  that  they  infected  with  their  ideas  the 

344 


Dutch  Sources 

particular  Puritans  that  came  to  Massachusetts  ?  Why 
should  they  have  infected  them  ?  They  were  refugees 
from  their  own  country  because  it  had  become  too  hot 
to  hold  them,  and  why  should  they  have  made  a  special 
point  of  introducing  its  institutions  ?  How  was  it  that 
they  infected  the  particular  persons  who  came  to  Massa- 
chusetts, and  not  the  rest  of  the  English  people  who 
stayed  at  home  ? 

As  in  the  absence  of  direct  evidence  the  whole  ques- 
tion is  one  of  assumption  only,  is  it  not  equally  reason- 
able to  assume  that  a  hundred  thousand  Netherland 
refugees,  scattered  through  the  wide  extent  of  the 
eastern  and  southern  counties  among  millions  of  the 
hard-headed,  insular  English  people,  would  have  not  the 
slightest  influence  ? 

Next,  he  says  that  these  counties  "always  had  the 
most  intimate  relations  with  the  Dutch  Republic."  But 
what  does  this  vague  expression  mean  ?  "  Most  inti- 
mate relations"  could  hardly  have  existed  between  those 
counties  and  the  Netherlands  without  England  becoming 
all  Dutch  or  Holland  becoming  all  English.  If  Mr. 
Campbell  could  show  that  the  particular  persons  who 
migrated  from  those  counties  to  Massachusetts  had  been 
in  Holland  or  had  intimate  relations  with  Holland,  what- 
ever that  may  mean,  he  might  advance  his  cause.  But 
he  makes  no  such  attempt ;  and  his  wild  assertion  that 
all  eastern  and  southern  England  was  most  intimate 
with  Holland,  and  that  any  one  who  came  from  those 
parts  of  England  would  necessarily  establish  Dutch  in- 
stitutions wherever  he  went,  is  a  mere  trap  for  the  unwary. 

Again,  he  says  "ail  of  these  men  were  acquainted 
345 


Evolution  of  the  Constitution 

with  Netherland  institutions."  Hardly  all  of  them  ;  for 
all  sorts  and  conditions  were  to  be  found  among  the 
Puritans.  He  probably  means  that  the  leaders  and  men 
of  education  were  acquainted  with  Netherland  laws  and 
government.  In  this  sense  we  can  readily  admit  his 
assertion,  and  add  to  it  that  they  were  also  well  ac- 
quainted with  the  institutions  of  antiquity,  Greek,  Ro- 
man, and  Jewish,  and  also  with  the  laws  and  methods 
of  government  of  France,  Spain,  and  possibly  Central 
Asia  and  Upper  India.  Men  in  all  ages  and  in  all  na- 
tions have  often  been  well  acquainted  with  the  laws  and 
usages  of  other  countries.  Such  an  assertion,  in  the 
absence  of  direct,  positive  evidence  of  imitation,  proves 
nothing. 

But  the  best  comes  last  "Some  of  them,"  he  says, 
"we  know,  had  passed  years  in  Holland  ;"  and  then  he 
goes  on  to  mention  two, — Dudley  and  Hugh  Peters. 
Now,  Peters  did  not  reach  the  colony  until  1635,  and 
by  that  time  the  town  system  was  firmly  established  ;  so 
he  could  not  have  had  anything  to  do  with  it ;  and,  as 
he  remained  in  the  colony  only  six  years,  his  after-influ- 
ence could  not  have  been  very  great  So  it  comes  to 
this,  that  after  asserting  that  "  some  of  them  had  passed 
years  in  Holland,"  he  has  one  person  to  make  his  as- 
sertion good, — one  out  of  more  than  ten  thousand. 
Dudley  had  a  great  task  in  converting  that  remnant ; 
and  if  he  really  performed  it,  all  the  other  great  men  of 
the  earth  should  sink  into  insignificance. 

But  Mr.  Campbell  is  always  equal  to  any  emergency, 
and,  after  giving  his  two  solitary  instances,  he  adds, 
"  and  there  were  doubtless  many  others  among  the  rank 

346 


Dutch  Sources 

and  file  unknown  to  history  who  had  also  lived  in  that 
asylum  of  the  persecuted."  Could  anything  be  more 
complete  than  this  ?  The  less  evidence  you  have,  and 
the  more  utterly  ignorant  you  are  of  the  existence  of  a 
fact,  the  more  surely  you  can  prove  it.  Just  confess 
your  ignorance,  offer  no  proof  whatever,  and  add,  "  but 
there  were  doubtless" — whatever  you  want. 

Wishing  to  be  entirely  candid  with  Mr.  Campbell, 
I  have  looked  all  through  Winthrop's  journal  to  see 
if  I  could  find  any  support  for  this  "  doubtless  there 
were  others,"  and  I  succeeded  in  finding  one  person, 
Captain  David  Patrick,  who  had  served  in  the  Dutch 
army.  As  he  came  out  with  Winthrop  and  the  first 
settlers,  he  will  replace  Hugh  Peters,  and  Mr.  Campbell 
will  still  have  two  persons  to  introduce  Dutch  influence. 

Patrick  had  been  brought  out  to  help  drill  the  militia, 
and  even  if  he  did  not  establish  the  town  system  it 
would,  I  should  think,  be  open  to  Mr.  Campbell  to  as- 
sert that  "possibly,"  or  "probably,"  or  "doubtless,"  he 
introduced  the  Dutch  military  system,  which  would,  of 
course,  spread  from  Massachusetts  to  the  whole  United 
States.  This  would  explain  at  once  the  wonderful  suc- 
cess of  the  Continental  army  in  the  Revolution.  Tren- 
ton, Saratoga,  and  Yorktown  would  no  longer  be  mys- 
terious successes  ;  and,  as  Patrick  introduced  his  system 
in  the  North,  we  could  the  more  easily  understand  the 
triumph  of  the  North  over  the  South  in  the  civil  war. 

Patrick,  however,  was  not  congenial  to  the  Puri- 
tans. They  could  not  altogether  approve  of  his  morals  ; 
and  after  many  difficulties,  and  becoming  "  proud  and 
vicious,"  as  Winthrop  tells  us,  he  fled  to  the  Dutch  at 

547 


Evolution  of  the  Constitution 

New  York,  where  he  was  murdered  by  one  of  those 
hberal  people.     (Winthrop's  "  New  England,"  vol.  ii.  p. 

151.) 

Mr.  Campbell's  book  gives  the  impression  that  the 
Plymouth  people  were  very  much  enamoured  of  Hol- 
land, and  if  this  were  so  it  might  help  out  his  pre- 
sumptions and  inferences.  But  let  us  see  what  Bradford 
says  on  this  point. 

He  begins  his  history  by  telling  us  that  his  people 
were  very  unwilling  to  leave  England.  They  were  per- 
secuted for  their  religion  ;  but  they  would  have  re- 
mained if  they  could.  Like  many  others,  they  loved 
their  country  none  the  less  because  they  were  perse- 
cuted. What  they  desired  was  to  convert  their  country 
to  their  own  way  of  thinking.  They  believed  that  their 
religion  was  the  true  English  religion. 

"But  to  go  into  a  country  they  knew  not  (but  by  hearsay), 
where  they  must  learn  a  new  language,  and  get  their  living  they 
knew  not  how,  it  being  a  dear  place,  and  subject  to  the  miseries 
of  war,  it  was  by  many  thought  an  adventure  almost  desperate, 
a  case  intolerable,  and  a  misery  worse  than  death."  (Mass.  Hist. 
Col.,  4th  series,  vol.  iii.  p.  11.) 

Arrived  in  Holland,  they  had  religious  liberty,  it  is 
true,  but  in  other  respects  they  did  not  prosper.  They 
were  ground  down  by  the  most  wretched  poverty,  and 
such  was  the  "  hardness  of  the  place  and  country"  that 
their  friends  in  England  would  not  join  them.  That  is 
to  say,  the  English  dissenters  and  Puritans,  who  were 
bitterly  persecuted  in  England,  preferred  to  remain  in 
their  own  country  and  endure  the  persecution   rather 

348 


Dutch  Sources 

than  subject  themselves  to  the  miseries  and  privations 
of  Holland. 

This  does  not  comport  very  well  with  the  impression 
we  gather  from  Mr.  Campbell's  book,  that  the  whole 
mass  of  English  dissenters  not  only  knew  all  about  Hol- 
land, but  admired  its  methods  and  customs,  and  were 
running  to  and  fro  all  the  time  and  on  "  the  most  inti- 
mate relations."  When  we  come  down  to  actual  evi- 
dence on  the  subject,  those  who  knew  all  about  the 
Netherlands  were  not  so  very  well  pleased  with  what 
they  knew,  and  those  who  really  were  on  "the  most 
intimate  relations' '  with  that  country  were  very  glad  to 
get  away  from  it. 

"In  the  agitation  of  their  thoughts,  and  much  discourse  of 
things  here  about,  at  length  they  began  to  incline  to  this  conclu- 
sion, of  removal  to  some  other  place.  Not  out  of  any  new-fan- 
gledness,  or  other  such  like  giddy  humor,  by  which  men  are 
oftentimes  transported  to  their  great  hurt  and  danger,  but  for 
sundry  weighty  and  solid  reasons  ;  some  of  the  chief  of  which  I 
will  here  briefly  touch.  And  first,  they  saw  and  found  by  expe- 
rience the  hardness  of  the  place  and  country  to  be  such,  as  few 
in  comparison  would  come  to  them,  and  fewer  that  would  bide  it 
out,  and  continue  with  them.  For  many  that  came  to  them,  and 
many  more  that  desired  to  be  with  them,  could  not  endure  that 
great  labor  and  hard  fare,  with  other  inconveniences  which  they 
underwent  and  were  contented  with. 

******* 

"Yea,  some  preferred  and  chose  the  prisons  in  England,  rather 
than  this  liberty  in  Holland,  with  these  afflictions.  But  it  was 
thought  that  if  a  better  and  easier  place  of  living  could  be  had,  it 
would  draw  many,  and  take  away  these  discouragements.  Yea, 
their  pastor  would  often  say,  that  many  of  those  who  both  wrote 
and  preached  now  against  them,  if  they  were  in  a  place  where 

349 


Evolution  of  the  Constitution 

they  might  have  liberty  and  live  comfortably,  they  would  then 
practise  as  they  did. 

*  It  *  *  *  *  * 

"And  therefore  according  to  the  divine  proverb  that  a  wise 
man  seeth  the  plague  when  it  cometh,  and  hideth  himself,  Prov. 
22,  3,  so  they  like  skilful  and  beaten  soldiers  were  fearful  either 
to  be  entrapped  or  surrounded  by  their  enemies,  so  as  they  should 
neither  be  able  to  fight  nor  fly  ;  and  therefore  thought  it  better 
to  dislodge  betimes  to  some  place  of  better  advantage  and  less 
danger,  if  any  such  could  be  found. 

*****■»« 

"  For  many  of  their  children  that  were  of  the  best  dispositions 
and  gracious  inclinations  having  learned  to  bear  the  yoke  in  their 
youth  and  willing  to  bear  part  of  their  parents'  burden,  were  often 
times,  so  oppressed  with  their  heavy  labors,  that  though  their 
minds  were  free  and  willing,  yet  their  bodies  bowed  under  the 
weight  of  the  same,  and  became  decrepid  in  their  early  youth  ; 
the  vigor  of  nature  being  consumed  in  the  very  bud  as  it  were. 
But  that  which  was  more  lamentable,  and  of  all  sorrows  most 
heavy  to  be  borne,  was  that  many  of  their  children,  by  these  oc- 
casions and  the  great  licentiousness  of  youth  in  that  country  and 
the  manifold  temptations  of  the  place,  were  drawn  away  by  evil 

examples  into  extravagant  and  dangerous  courses So 

that  they  saw  their  posterity  would  be  in  danger  to  degenerate 

and  be  corrupted They  lived  here  but  as  men  in  exile 

and  in  poor  condition." 

These  passages,  it  seems  to  me,  make  the  situation 
very  clear.  The  great  mass  of  the  English  dissenters, 
though  persecuted  and  unable  to  make  England  alto- 
gether the  country  they  wished  it  to  be,  preferred 
nevertheless  to  remain  and  endure  these  evils  and  wait 
for  better  times,  like  the  sturdy  hearts  of  oak  they  were. 
A  small  company  of  them,  however,  after  many  mis- 
givings, went  to  try  life  in  Holland ;  and,  though  they 

3SO 


Dutch  Sources 

were  not  persecuted,  their  experiment  was  in  other  re- 
spects a  failure. 

What  they  wanted  was  England  without  persecution  ; 
and  they  decided  that  the  way  to  realize  that  ideal  as 
nearly  as  possible  was  to  go  out  on  some  of  the  wil- 
derness land  that  belonged  to  England  on  the  North 
American  continent.  They  could  have  gone  to  one 
of  the  Dutch  possessions,  and  were  strongly  urged  to 
do  it  Indeed,  it  would  have  been  easier  and  more 
profitable  for  them.  But  they  preferred  the  harder  way 
beneath  the  English  flag. 

Besides  Bradford,  there  is  another  excellent  authority 
on  these  points, — Edward  Winslow,  who  had  been  in 
Holland,  and  who  came  out  on  the  Mayflower  with  the 
Pilgrims,  and  was  afterwards  their  governor.  Among 
his  writings  there  is  a  pamphlet  called  "A  Brief 
Narrative,"  in  which  he  gives  the  reasons  for  leaving 
Holland  so  clearly  and  to  the  point  that  comment  is 
unnecessary : 

' '  But  our  reverend  pastor,  Mr.  John  Robinson,  of  late  mem- 
ory, and  our  grave  elder,  Mr.  William  Brewster  (now  at  rest  with 
the  Lord,)  considering,  amongst  many  other  inconveniences,  how 
hard  the  country  was  where  we  lived,  how  many  spent  their  estate 
in  it,  and  were  forced  to  return  for  England,  how  grievous  to  live 
from  under  the  protection  of  the  State  of  England,  how  like  we 
were  to  lose  our  language  and  our  name  of  English,  how  little 
good  we  did  or  were  like  to  do  to  the  Dutch  in  reforming  the 
sabbath,  how  unable  there  to  give  such  education  to  our  children 
as  we  ourselves  had  received,  etc.,  they,  I  say,  out  of  their  Chris- 
tian care  of  the  flock  of  Christ  committed  to  them,  conceived,  if 
God  would  be  pleased  to  discover  some  place  to  us  (though  in 
America)  and  give  us  so  much  favor  with  the  King  and  State  of 

351 


Evolution  of  the  Constitution 

England  as  to  have  their  protection  there,  where  we  might  enjoy 
the  like  liberty,  and  where,  the  Lord  favoring  our  endeavors  by 
his  blessing,  we  might  exemplarily  show  our  tender  countrymen 
by  our  example,  no  less  burdened  than  ourselves,  where  they 
might  live  and  comfortably  subsist,  and  enjoy  the  like  liberties 
with  us,  being  freed  from  anti-christian  bondage,  keep  their  name 
and  nation,  and  not  only  be  a  means  to  enlarge  the  dominions 
of  our  State,  but  the  church  of  Christ  also,  if  the  Lord  have  a 
people  amongst  the  nations  whither  he  should  bring  us  etc.  here- 
by in  their  great  wisdoms  they  thought  we  might  more  glorify 
God,  do  more  good  to  our  country,  better  provide  for  our  pos- 
terity, and  live  to  be  more  refreshed  by  our  labors,  than  ever  we 
could  do  in  Holland,  where  we  were."  (Young's  "Chronicles 
of  the  Pilgrim  Fathers,"  p,  381.) 

For  many  years  after  the  Plymouth  people  were  set- 
tled in  Massachusetts  the  Dutch  occupied  the  country 
about  two  hundred  miles  southwest  of  them,  at  New 
York.  Dutch  vessels  were  frequently  working  their 
way  through  Long  Island  Sound  and  up  the  Connecti- 
cut River,  exploring  the  country  with  the  hope  of  an- 
nexing it.  They  were  very  pleasant  and  friendly  towards 
the  Plymouth  people,  with  a  view  of  including  them 
within  the  settlement  at  New  York  and  having  the 
whole  of  New  England  as  a  part  of  the  Dutch  colony. 
But  we  find  that  Bradford  and  his  people  withstood 
them,  and  distinctly  warned  the  Dutch  governor  not  to 
trespass  within  the  bounds  of  New  England.  Winslow 
even  went  so  far  as  to  present  a  petition  to  the  Lords 
Commissioners  for  Plantations  in  England  asking  for 
authority  to  resist  the  encroachments  of  both  the  Dutch 
and  the  French.  (Mass.  Hist  Coll.,  4th  series,  vol.  iii. 
p.  225,  note,  p.  328.) 

As  to  the  Puritans  at  Boston,  they  also  had  no  par- 
352 


Dutch  Sources 

ticular  liking  for  the  Dutch  at  New  York,  and  there 
are  a  number  of  passages  in  Winthrop's  journal  that 
show  it.  Judging  from  these,  the  Puritans  had  no  sym- 
pathy with  the  Dutch  religion,  and  regarded  the  Dutch 
colony  merely  as  a  place  to  which  their  heretics  and 
exiles  fled.  A  man  or  woman  who  was  not  moral 
enough  or  orthodox  enough  to  live  in  Massachusetts 
went  to  the  Hollanders  at  New  York  : 

' '  They  lay  windbound  sometime  at  Aquiday  ;  then  as  they 
passed  Hellgate  between  Long  Island  and  the  Dutch,  their  pinnace 
was  bilged  upon  the  rocks,  so  as  she  was  near  foundered  before 
they  could  run  on  next  shore.  The  Dutch  governor  gave  them 
slender  entertainment ;  but  Mr.  AUerton  of  New  Haven,  being 
there,  took  great  pains  and  care  for  them."  (Winthrop's  "  New 
England,"  Savage's  edition,  vol.  ii.  p.  96.) 

"  The  lady  Moodye,  a  wise  and  anciently  religious  woman, 
being  taken  with  the  error  of  denying  baptism  to  infants,  was 
dealt  withal  by  many  of  the  elders  and  others,  and  admonished 
by  the  church  of  Salem  (whereof  she  was  a  member)  but  persist- 
ing still  and  to  avoid  further  trouble  etc.  she  removed  to  the 
Dutch  against  the  advice  of  all  her  friends.  Many  others,  in- 
fected with  anabaptism,  removed  thither  also,  she  was  after  ex- 
communicated."    {Id.,  p.  123.) 

"  These  people"  (Mrs.  Hutchinson  and  some  others  who  had 
been  banished  for  heresy)  "  had  cast  off  ordinances  and  churches, 
and  now  at  last  their  own  people,  and  for  larger  accommodation 
had  subjected  themselves  to  the  Dutch."     (/</.,  p.  136.) 

"Other  affairs  were  transacted  by  the  commissioners  of  the 
United  Colonies  {i.e.,  the  New  England  Union  of  1643)  as  writing 
letters  to  the  Swedish  Governor  in  Delaware  River,  concerning 
foul  injuries  offered  by  him  to  Mr.  Lamberton  and  those  people 
from  New  Haven  who  had  planted  there,  and  also  to  the  Dutch 
Governor  about  the  injuries  his  agent  there  had  also  offered  and 
done  to  them  as  burning  down  their  trading  house,  joining  with 
the  Swedes  against  them,  etc."     {Id.,  p.  140.) 

•3  353 


Evolution  of  the  Constitution 

' '  The  United  Colonies  having  made  strict  orders  to  restrain 
all  trade  of  powder  and  guns  to  the  Indians,  by  occasion  whereof 
the  greatest  part  of  the  beaver  trade  was  drawn  to  the  French 
and  Dutch,  by  whom  the  Indians  were  constantly  furnished  with 
those  things,  though  they  also  made  profession  of  like  restraint, 
but  connived  at  the  practice,  so  as  our  means  of  returns  for  Eng- 
lish commodities  were  grown  very  short."    {Id.,  p.  311.    See  also 

pp.  314,  315.  324,  327-) 

"About  this  time  we  had  intelligence  of  an  observable  hand 
of  God  against  the  Dutch  at  New  Netherlands,  which  though  it 
were  sadly  to  be  lamented  in  regard  of  the  calamity,  yet  there 
appeared  in  it  so  much  of  God  in  favor  to  his  poor  people  here, 
and  displeasure  towards  such  as  have  opposed  and  injured  them, 
as  is  not  to  be  passed  by  without  due  observation  and  acknowledg- 
ment."    {Id.,  p.  316.) 

The  last  quotation  refers  to  the  drowning  of  sixty 
Dutchmen  in  a  shipwreck,  among  whom  was  Kieft, 
who  had  once  been  governor  at  New  York.  Other  pas- 
sages of  similar  import  might  be  cited,  but  it  is  needless 
to  multiply  them. 

The  next  source  of  Dutch  influence  after  Massachusetts 
was,  Mr.  Campbell  tells  us,  in  New  York.  Of  course, 
every  one  knows  that  the  Dutch  were  there  for  about  forty 
years  before  the  English  conquest,  and  when  the  asser- 
tion is  made  that  these  Dutch  had  the  town  system,  free- 
dom of  religion  and  of  the  press,  recording  of  deeds, 
equal  inheritance  of  land,  and  various  other  valuable 
customs,  most  persons  are  ready  to  infer  that  these 
things  spread  thence  to  the  whole  United  States. 

But  let  us  examine  these  assertions,  which  are  made  in 
Mr.  Campbell's  usual  liberal  manner,  without  citing  any 
authority  whatever.  The  Dutch  had  towns,  of  course. 
People  have  had  towns  everywhere,  and,  as  the  Dutch 

354 


Dutch  Sources 

at  New  York  were  principally  traders  and  the  Indians 
were  very  hostile,  it  was  absolutely  necessary  that  they 
should  live  in  towns  and  have  them  fortified.  But  were 
these  towns  self-governing,  and  did  they  send  representa- 
tives to  the  legislature,  after  the  manner  of  the  Massa- 
chusetts system?  The  most  superficial  glance  at  the 
history  of  New  York  shows  that  the  Dutch  towns  never 
sent  representatives  to  the  legislature,  for  the  very  good 
reason  that  during  the  Dutch  dominion  there  was  no 
legislature  in  the  colony. 

This  is  the  first  check  one  receives  after  reading  Mr. 
Campbell's  extravagant  eulogies.  The  Dutch,  the  au- 
thors of  all  our  American  liberty  and  institutions,  had 
not,  it  seems,  progressed  so  far  among  themselves  as  to 
have  representative  government  in  their  own  colony. 
Now  the  English  colonies — those  that  were  owned  by 
feudal  proprietors  as  well  as  those  whose  charters  were 
granted  by  kings — had  representative  government  from 
the  beginning.  But  in  Dutch  New  York  it  was  not 
established,  and  could  not  be  established,  although  the 
people  rebelled  and  clamored  for  it 

There  was  no  self-government  in  the  Dutch  colony  at 
large,  and  no  self-government  in  the  towns.  These  towns 
were  mere  ordinary  towns,  and  had  none  of  the  pecuHar 
characteristics  of  the  New  England  system.  In  some  of 
these  Dutch  towns  on  Long  Island  English  people  from 
New  England  had  settled,  and  they  demanded  local 
self-government  for  themselves.  It  was  granted  to  pacify 
them  and  avoid  offence  to  New  England  : 

"  It  is  a  suggestive  fact  that  the  first  town  court  erected  by  the 
Dutch  was  one  for  the  benefit  of  the  English  residents  of  Hemp- 

355 


Evolution  of  the  Constitution 

stead,  Long  Island,  a  place  then  within  New  Netherland.  In 
1644  Kieft  granted  land  to  Robert  Fordham,  John  Strickland,  and 
other  persons  of  English  origin,  then  in  allegiance  to  the  States- 
General,  with  corporate  powers  including  the  right  to  nominate 
magistrates  for  the  governor's  selection,  and  to  establish  laws  by 
ordinances  with  the  consent  of  the  inhabitants.  ...  So  extraordi- 
nary a  grant  of  self-government  at  this  early  period  was  intended 
to  placate  the  border  English."  (Fowler's  "  Introduction  to  Laws 
and  Acts  of  New  York."     Published  by  Grolier  Club,  p.  23.) 

The  Dutch  notion  of  municipal  government  was,  as 
Bancroft  puts  it  (History  of  the  United  States,  vol.  ii.  p. 
305,  ed.  1 846),  that  "  the  city  had  privileges,  not  the  citi- 
zens." Citizenship  was  a  mere  commercial  privilege, 
not  a  political  enfranchisement  The  Dutch  in  New 
York  learned  all  they  knew  of  the  self-government  of 
towns  from  the  New  Englanders.  Indeed,  so  far  as 
they  learned  any  lessons  at  all  in  liberty  they  came  from 
the  same  source.  When  the  people  on  one  occasion 
clamored  for  representative  government  they  were  in- 
cited by  New  England  influence,  and  Stuyvesant,  the 
governor,  in  rebuking  them,  said  :  "Will  you  set  your 
names  to  the  visionary  notions  of  the  New  England 
men?"     (Bancroft,  vol.  ii.  pp.  306,  307.) 

He  was  supported  in  his  rebuke  by  the  West  India 
Company,  which  declared  that  the  demand  for  repre- 
sentation Wcis  "  contrary  to  the  maxims  of  every  enlight- 
ened government  Have  no  regard  to  the  consent  of 
the  people,  and  let  them  no  longer  indulge  the  visionary 
dream  that  taxes  can  be  imposed  only  with  their  con- 
sent" These  New  York  Dutch  were  so  far  from  intro- 
ducing into  America  any  liberty  of  their  own  that  they 
were  planning  to  copy  English  liberty  and  were  listening 

356 


Dutch  Sources 

complacently  to  proposals  of  submitting  themselves  to 
English  jurisdiction.  All  this  is  commonplace  New 
York  history,  which  Mr.  Campbell  could  Ccisily  have 
discovered. 

Mr.  Campbell  has  much  to  say  about  freedom  of 
religion  and  the  absence  of  an  established  church  in 
America,  and  much  abuse  for  the  English  established 
church  and  English  persecution.  We  cannot  possibly, 
he  says,  have  derived  our  religious  liberty  and  separa- 
tion of  church  and  state  from  Great  Britain.  It  must 
have  been  introduced  among  us  by  the  Dutch.  Possi- 
bly so.  But  O'Callaghan's  volume  of  the  Dutch  laws 
and  ordinances  in  New  York  does  not  give  one  that 
impression  : 

"Whereas  we  daily  find  that  many  vagabonds,  Quakers  and 
other  Fugitives  are,  without  the  previous  knowledge  and  consent 
of  the  Director  General  and  council,  conveyed,  brought  and 
landed  in  this  government,  and  sojourn  and  remain  in  the  re- 
spective villages  of  this  Province,  without  those  bringing  them 
giving  notice  thereof,  or  such  persons  addressing  themselves  to 
the  government  and  showing  whence  they  come,  as  they  ought 
to  do,  or  that  they  have  taken  the  oath  of  fidelity  the  same  as 
other  inhabitants ;  the  Director  General  and  Council,  therefore, 
do  hereby  order  and  command  all  skippers,  sloop  captains  and 
others,  whomsoever  they  may  be,  not  to  convey,  or  bring,  much 
less  to  land  within  this  government,  any  such  vagabonds,  Quakers 
and  other  Fugitives,  whether  men  or  women,  unless  they  have 
first  addressed  themselves  to  the  government,  have  given  informa- 
tion thereof  and  asked  and  obtained  consent,  on  pain  &c."  (O'Cal- 
laghan's "  Laws  and  Ordinances  of  New  Netherland,"  p.  439.) 

"  The  sheriff  and  Magistrates  shall,  each  in  his  quality,  take 
care  that  the  Reformed  Christian  Religion  be  maintained  in  con- 
formity to  the  Synod  of  Dordrecht,  without  permitting  any  other 
sects  attempting  anything  contrary  thereto."     {^d.,  p.  476.) 

357 


Evolution  of  the  Constitution 

Under  these  Hberal  Dutchmen  in  New  York,  Roman 
Catholics,  Baptists,  Quakers,  and  Jews  were  ostracized 
and  refused  the  right  to  hold  public  worship.  The 
Lutherans,  after  a  struggle,  secured  a  minister  for  them- 
selves, and  the  English  Presbyterians  and  Congregation- 
alists  were  allowed  their  ministers  because  it  was  impor- 
tant to  please  them.  Whatever  religious  liberty  existed 
in  New  York  was  due  to  the  English  and  the  Lutherans, 
and  not  to  the  Dutch.     (O'Callaghan's  Laws,  etc.,  vi.) 

The  truth  is  that  the  Dutch  rule  in  New  York  was  a 
stifling  monopoly  of  the  most  arbitrary  kind.  The  land 
was  granted  in  large  fiefs  to  patroons  with  the  intention 
of  creating  a  privileged  class  and  aristocracy.  Stuy- 
vesant  undertook  to  enforce  religious  uniformity  and 
relentlessly  persecuted  the  Lutherans  and  the  Quakers, 
and,  as  a  matter  of  fact,  religious  liberty  was  established 
in  the  colony  when  the  English  took  it  in  1 664.  At 
the  same  time  representative  government  appeared. 

Mr.  Campbell  seems  to  think  that  fair  and  honorable 
treatment  of  the  Indians  was  a  Dutch  idea.  If  it  was, 
the  Indians  were  very  ungrateful,  for  they  slaughtered 
the  Dutch  without  mercy.  Every  town  and  village  had 
to  be  fortified,  and  at  times  they  almost  chased  the 
Dutchmen  out  of  the  country.  There  was  one  episode 
in  particular  which  shows  the  Dutch  idea  of  honor,  and, 
as  it  is  given  very  concisely  by  Mr.  Lodge  in  his  his- 
tory of  the  colonies,  I  shall  quote  his  words  : 

"The  Mohawks,  armed  by  the  Dutch,  swept  down  from  the 
north,  driving  the  river  tribes  before  them.  The  fugitives  sought 
refuge  in  the  Dutch  settlement  and  were  well  received,  especially 
by  De  Vries,  who  sought  to  give  them  every  protection ;  but  the 

358 


Dutch  Sources 

helpless  condition  of  his  former  enemies  only  aroused  Kieft  to 
fury.  Two  or  three  of  the  'twelve,'  who  had  been  dissolved, 
met  and  presented  a  petition  to  the  governor  that  the  Indians 
should  be  attacked.  .  .  .  The  wretched  fugitives,  surprised  by 
their  supposed  protectors,  were  butchered  in  the  dead  of  a  winter 
night  without  mercy  ;  and  the  bloody  soldiers  returned  in  the 
morning  to  Manhattan,  where  they  were  warmly  welcomed  by 
Kieft."     (Lodge's  "History  of  the  Colonies,"  p.  289.) 

In  fact,  the  Dutch  rule  in  New  York  was  so  illiberal 
and  impolitic  that  settlers  were  kept  away  from  the 
colony,  and  it  never  flourished.  It  was  founded  about 
the  same  time  as  New  England,  and  had  greater  ad- 
vantages and  resources  ;  but  in  1664,  when  it  was  sur- 
rendered to  the  English,  it  had  only  seven  thousand 
inhabitants  against  over  a  hundred  thousand  in  New 
England. 

The  last  place  where  the  Dutch  influence  is  supposed 
to  have  entered  was  Pennsylvania  ;  but  Mr.  Campbell's 
argument  on  this  point  is  scattered  in  many  parts  of  his 
book.  In  the  chapter  on  the  Scotch-Irish  he  says  (vol. 
ii.  p.  470)  that  Pennsylvania  and  Delaware  had  a  large 
Dutch  population  ;  and  this  absolutely  untrue  statement 
is  one  of  those  which  appear  all  through  the  work,  and 
gradually  give  the  ordinary  reader  an  impression  favor- 
able to  the  author's  argument 

There  never  was  a  large  Dutch  population  either  in 
Delaware  or  in  Pennsylvania.  The  Dutch  had  a  few 
trading  stations  on  the  Delaware  River  and  Bay  at  the 
same  time  that  they  occupied  New  York  ;  but  they 
never  settled  the  country,  or  even  attempted  to  settle  it 
The  Swedes  came  and  far  outnumbered  the  Dutch  ; 
then  the  English  came  when  they  captured  New  York ; 

359 


Evolution  of  the  Constitution 

and  at  the  time  Penn  and  the  Quakers  arrived,  in  1682, 
all  the  Dutch,  Swedes,  and  English  living  on  the  whole 
length  of  the  river  were  less  than  three  thousand.  Most 
of  these  were  Swedes  and  English,  and  the  Dutch 
amounted  to  nothing.  They  established  no  institutions 
of  any  kind  ;  for  any  customs  they  or  the  Swedes  had 
on  the  Delaware  were  swept  out  of  existence  by  the 
English  and  the  country  put  under  English  law. 

Besides  this  make-weight  assertion,  Mr.  Campbell  says 
that  Penn  had  travelled  considerably  in  Holland,  that 
his  mother  was  a  Dutchwoman,  and  that  the  Quakers 
resembled  in  doctrine  the  Mennonites  of  Holland. 
Now,  it  is  undoubtedly  true  that  Penn  had  travelled 
in  Holland.  He  had  travelled,  however,  much  more 
in  Germany  He  and  his  Quakers  encouraged  all  the 
German  peace  sects  that  resembled  the  Quakers  in  re- 
ligion to  come  to  Pennsylvania,  but  none  came  from 
Holland  except  a  few  scattered  individuals. 

A  large  number  of  Germans,  however,  came  ;  but 
they  established  no  German  form  of  government  as  part 
of  the  constitution  of  Pennsylvania,  and  no  one  has  ever 
asserted  that  they  did.  This  goes  to  show  that  the 
presence  in  a  country  of  a  large  body  of  foreigners  does 
not  necessarily  lead  to  the  establishment  of  the  institu- 
tions of  the  country  from  which  the  foreigners  come. 

If  Penn  was  so  familiar  with  Holland,  and  if  people 
always  imitate  the  foreign  country  with  which  they  are 
familiar,  we  should  expect  to  find  a  great  deal  that  is 
Dutch  in  Pennsylvania.  In  fact,  Pennsylvania  seems  to 
be  a  much  better  place  for  Mr.  Campbell  to  introduce 
his  Netherland  influence  than  New  England.     But  the 

360 


Dutch  Sources 

first  thing  that  strikes  us  is  that  Penn  did  not  intro- 
duce, nor  attempt  to  introduce,  the  New  England  town 
system,  or  any  system  of  towns  like  that  in  Holland, 
On  the  contrary,  he  introduced  the  English  county  sys- 
tem. In  after-years  the  township  system  was  partly 
introduced  as  the  result  of  experience  and  convenience, 
so  that  Pennsylvania  has  a  cross  between  the  two,  be- 
cause the  nature  of  the  land,  climate,  and  civilization 
makes  the  combination  the  best  method,  as  the  county 
alone  is  the  best  method  farther  south  and  the  town 
alone  farther  north.  So  in  this  important  instance  Penn 
and  his  people  adopted  what  seemed  most  suited  to 
their  circumstances,  and  were  not  looking  over  the  world 
for  something  to  imitate. 

Let  us  go  a  step  farther.  Penn's  agent  in  Holland 
was  Benjamin  Furly,  an  Englishman  from  Colchester, 
who  at  the  age  of  twenty-five  went  to  Holland  and 
in  the  course  of  years  became  a  rich  and  prosperous 
merchant  at  Rotterdam.  He  was  a  patron  of  letters,  a 
collector  of  rare  books,  a  writer  of  some  little  celebrity, 
and  very  much  interested  in  the  Quakers.  His  house 
was  the  resort  of  learned  and  distinguished  men,  and 
he  was  a  great  friend  of  the  philosopher  Locke.  He 
interested  himself  to  get  German  immigrants  for  Penn's 
colony,  and  Penn  consulted  him  on  all  sorts  of  matters. 

He  consulted  him  about  the  best  sort  of  constitution 
for  Pennsylvania,  and  prepared  one  which  contained  a 
good  many  Dutch  ideas,  no  doubt  suggested  by  Furly. 
If  this  constitution  had  been  adopted  it  would  have  been 
a  strong  point  for  Mr,  Campbell.  But  it  was  rejected 
and  abandoned  by  Penn  himself,  and  in  the  place  of  it 

361 


Evolution  of  the  Constitution 

he  prepared  another  which  was  adopted  ;  and  this  also 
he  submitted  to  Furly.  We  have  Furly's  criticisms  on 
it,  complaining,  in  rather  strong  language,  that  Penn 
had  repudiated  all  his  Dutch  suggestions,  and  hinting 
that  no  good  would  come  of  it 

These  criticisms  of  Furly's  and  the  whole  subject  of 
his  influence  over  Penn  have  been  recently  very  care- 
fully investigated  by  Mr.  Julius  Sachse  in  the  Pennsyl- 
vania Magazine  of  History  (vol.  xix.  p.  277).  Penn 
resisted  and  rejected  the  Dutch  influence,  and  all  that 
Furly  could  persuade  him  to  put  in  his  constitution  was 
a  clause  allowing  the  alien  Germans  greater  privileges 
than  were  accorded  to  them  in  the  other  colonies. 

Furly  himself  had  an  opinion  about  the  liberality  of 
Holland  which  is  worth  quoting.  Among  the  people 
who  called  upon  him  to  see  his  rare  books  and  hear  his 
opinions  on  various  subjects  was  Zacharias  von  Uffen- 
bach,  who  has  left  us  in  his  memoirs  an  account  of  the 
visit : 

"When  I  reminded  him  that  in  Holland  Religious  liberty 
prevailed,  he  denied  emphatically  that  this  assumption  was  true, 
and  he  became  quite  excited  over  the  procedure  of  the  local  magis- 
trates against  the  so-called  English  New-prophets. 

"  He  admitted  that  he  not  only  harbored  their  tenets,  and  had 
printed  their  writings  with  a  preface  of  his  own,  but  had  defended 
them  as  well  before  the  Magistrates  and  endeavored  to  shield  and 
protect  them,  yet  notwithstanding  all  his  efforts  these  innocent 
people  had  been  expelled  from  the  country."  (Penna.  Mag.  of 
History,  vol.  xix.  p.  294.) 

So,  after  all,  there  was  not  in  Holland  that  absolute 
and  complete  religious  liberty  which  Mr.  Campbell 
would  have  us  suppose^  and  which,  he  says,  was  copied 

36a 


Dutch  Sources 

in  AmericcL  There  was,  no  doubt,  more  freedom  in 
Holland  in  this  respect  than  in  some  other  countries  of 
Europe.  They  were  all  working  at  the  problem,  each 
in  its  own  way.  Religious  liberty  was  gradually  devel- 
oping in  England,  and  there  was  a  strong  party  there  in 
its  favor  ;  Voltaire  and  his  friends  were  fighting  for  it  in 
France ;  and  the  Mennonites,  Baptists,  and  other  sects 
were  its  ardent  advocates  in  Germany.  Holland  had 
rather  more  of  it  than  some  countries,  partly  because 
she  found  that  toleration  increased  her  population  and 
commerce. 

Each  country's  struggle  for  the  great  principle  was 
encouraged  by  any  success  it  attained  in  other  nations. 
Its  success  in  Holland  helped  its  success  in  England, 
and  what  was  gained  for  it  in  England  was  an  additional 
encouragement  in  Holland,  The  sects  that  advocated 
it  in  Germany  had  an  influence  on  English  thought,  and 
in  the  reign  of  Queen  Anne,  England,  in  her  turn,  helped 
these  struggling  German  sects  by  delivering  more  than 
thirty  thousand  of  them  from  persecution  and  settling 
them  in  Ireland  and  America. 

In  New  York,  the  Dutch,  as  we  have  seen,  allowed 
religious  liberty  to  the  New  England  Congregationalists 
because  they  feared  them,  and  to  the  Lutherans  because 
they  demanded  it ;  but  Jews,  Roman  Catholics,  Baptists, 
and  Quakers  they  persecuted  without  mercy.  In  Hol- 
land they  granted  freedom  to  many  religions  to  which 
they  had  no  objection  or  which  they  thought  it  was 
advisable  to  encourage,  but  against  others  which  they 
did  not  like  they  were  very  severe. 

The  only  way  by  which  the  invention  of  religious 
363 


Evolution  of  the  Constitution 

liberty  can  be  traced  to  one  source  is  by  fixing  on  a 
favorite  source  and  ignoring  all  the  others.  Religious 
liberty  sprang  up  all  over  Europe  as  the  result  of  the 
revival  of  learning,  the  invention  of  the  printing-press, 
and  the  progress  of  the  Reformation.  There  was  no 
country  that  had  not  some  measure  of  it,  and  in  each 
country  there  were  sects,  parties,  and  individuals  that 
had  more  of  it  and  others  that  had  less  of  it  Of  the 
people  who  came  from  England  to  America,  some,  like 
the  Massachusetts  Puritans,  had  none  of  it,  and  others, 
like  the  Pennsylvania  Quakers,  had  a  great  deal  of  it 

Mr.  Campbell's  argument,  that  everything  advanced 
and  liberal  that  the  Quakers  introduced  into  Pennsyl- 
vania must  have  come  from  Holland,  because  the  Hol- 
land Mennonites  were  similar  in  doctrine  to  the  Quakers, 
is  a  mere  assumption.  The  Mennonites  were  a  sect  as 
numerous  in  Germany  as  in  Holland,  and  many  of  these 
German  Mennonites  settled  in  Pennsylvania  by  the  en- 
couragement of  Penn  and  his  people,  but  there  were  very 
few  Hollanders  among  them.  The  German  Mennonites 
were  a  peace  sect,  like  the  Quakers,  and  extremely  liberal 
in  their  views.  They  were  part  of  a  great  movement 
of  religious  thought  which  spread  all  over  the  Conti- 
nent and  England  in  the  sixteenth  and  seventeenth  cen- 
turies, producing  the  Quakers  and  Baptists  in  England, 
the  Mennonites,  Tunkers,  Schwenkfelders,  Pietists,  and 
a  host  of  other  small  sects  in  Germany,  and  similar 
sects  in  Holland,  France,  and  Italy.  In  Italy  the  move- 
ment gained  such  ascendency  under  the  leadership  of 
Molinos,  the  Quietist,  that  it  had  to  be  stopped  by  the 
severest  measures  of  the  Jesuits  and  the  Inquisition. 

364 


Dutch  Sources 

It  is  impossible,  therefore,  to  say  that  Penn  and  the 
Pennsylvania  Quakers  obtained  even  their  religious  ideas 
from  Holland  alone.  In  fact,  if  we  start  to  trace  their 
origin  on  the  Continent,  we  shall  be  utterly  unable  to 
confine  it  to  any  one  locality,  except  by  Mr.  Campbell's 
convenient  method  of  exclusion. 

He  gives  instances  of  laws  introduced  by  Penn  which, 
he  says,  were  copied  from  Holland,  and  among  these 
the  law  requiring  every  child  over  the  age  of  twelve  to 
be  taught  a  trade,  the  law  giving  one-third  of  the  estate 
of  a  murderer  to  the  next  of  kin  of  his  victim,  and 
the  law  requiring  that  before  marriage  the  parents  or 
guardians  of  the  parties  should  be  consulted. 

In  the  case  of  the  law  requiring  every  child  to  learn  a 
trade  the  resemblance  is  very  far-fetched.  The  law  in 
Pennsylvania  applied  to  all  children,  rich  and  poor,  and 
was  simply  an  attempt  to  enforce  by  statute  a  practice 
the  Quakers  attempted  to  enforce  by  their  church  dis- 
cipline, of  teaching  all  their  children  some  trade,  no 
matter  what  were  their  circumstances  in  life.  But  the 
Holland  law,  as  Mr.  Campbell  gives  it,  applied  only  to 
the  children  who  became  a  charge  on  the  public  because 
their  parents  were  too  poor  to  support  them  (vol.  ii.  p. 
465).  There  is,  therefore,  no  real  resemblance  ;  and 
even  if  tliere  was  it  would  not  avail  Mr.  Campbell,  for 
this  law  was  never  enforced  in  Pennsylvania,  and  has 
not  been  adopted  in  the  United  States,  and  even  the 
Quakers  themselves  soon  gave  up  all  attempts  to  cany 
it  out  by  their  discipline.  So  if  this  was  an  attempt  to 
introduce  a  Dutch  law,  it  signally  failed. 

The  law  giving  one-third  of  the  estate  of  a  murderer 

365 


Evolution  of  the  Constitution 

to  the  next  of  kin  of  his  victim  was  somewhat  like  a  law 
of  Holland  compelling  any  one  who  caused  the  death  of 
another,  even  by  negligence,  to  pay  an  annuity  to  the 
widow  and  children.  A  lawyer  would  say  that  the  two 
were  by  no  means  alike.  But,  waiving  that,  this  attempt 
to  introduce  a  Dutch  law  also  failed.  The  law  was  not 
continued  in  Pennsylvania,  and  has  not  been  adopted  by 
the  country  at  large. 

The  law  requiring  that  before  marriage  the  parents 
and  guardians  of  the  parties  should  be  consulted  was 
another  failure.  It  was  abandoned  in  Pennsylvania,  and 
is  not  a  law  of  the  United  States. 

In  our  whole  investigation  of  this  subject  we  have 
been  able  to  find  only  one  custom  introduced  into  this 
country  for  which  there  is  direct  and  positive  evidence 
of  its  Dutch  origin.  This  was  the  custom  of  marriage 
before  a  magistrate,  to  the  exclusion  of  marriage  by  a 
minister  of  religion,  which,  as  we  have  shown,  Bradford 
says  was  taken  from  Holland  by  the  Pilgrim  Fathers. 
It  prevailed  for  a  time  in  Massachusetts,  but  has  never 
been  accepted  by  our  people.  The  one  instance,  there- 
fore, where  there  is  positive  proof  of  Dutch  imitation 
resulted  in  a  failure  to  establish  the  imitation,  and  the 
three  other  instances  where  there  is  slight  or  possible 
evidence  of  imitation  also  resulted  in  failure  to  establish. 
This  comports  with  the  general  principle  of  my  argu- 
ment in  this  volume,  that  our  institutions  are  the  growth 
of  natural  circumstances  and  conditions,  and  are  not 
plagiarisms.  Institutions  or  laws  purely  exotic  or  purely 
imitative  usually  fail. 

Mr.  Campbell's  extension  of  the  Dutch  influence  after 
366 


Dutch  Sources 

its  establishment  in  New  England,  New  York,  and 
Pennsylvania  is  most  interesting.  Our  self-governing 
States,  he  says,  grew  out  of  the  Dutch  self-governing 
towns.  He  seems  to  forget  that  the  colonies  were  all 
self-governing,  even  those  which,  like  Virginia,  had 
no  township  system  whatever,  and  after  the  Revolution 
each  colony,  both  South  and  North,  became  a  self-gov- 
erning State.  Indeed,  the  vigor  with  which  State  rights 
and  State  sovereignty  were  maintained  in  the  Southern 
States,  where  Mr.  Campbell  says  there  was  no  Dutch 
influence,  would  indicate  that  there  may  have  been  a 
Netherland  influence  there  which  he  has  overlooked. 

Connecticut,  he  says,  was  started  by  "  a  little  detach- 
ment from  Plymouth,  carrying  Dutch  ideas.  .  .  .  Some 
of  its  members  having  doubtless  lived  in  Holland,  sailed 
up  the  Connecticut  River  and  established  a  settlement 
at  Windsor."  (Vol.  ii.  p.  416.)  Here  is  that  "doubt- 
less" again  which  he  always  uses  when  he  has  no  evi- 
dence for  an  assertion.  Afterwards  he  is  able  to  dis- 
cover that,  when  other  towns  in  Connecticut  were  settled, 
there  was  one  man  among  them,  Thomas  Hooker,  who 
had  lived  for  a  time  in  Holland.  Accordingly,  when 
these  Connecticut  people  drew  up  their  fundamental 
orders  on  a  piece  of  paper  it  was  the  first  American 
written  constitution  ;  and,  as  the  Netherland  Union  of 
Utrecht  was  in  writing,  it  must  have  suggested  this 
Connecticut  document,  which  afterwards,  of  course,  sug- 
gested the  reducing  to  writing  of  the  Constitution  of  the 
United  States. 

He  forgets  that  the  Massachusetts  charter,  from  which, 
as  we  have  shown,  these  fundamental  orders  of  Con- 

367 


Evolution  of  the  Constitution 

necticut  were  taken,  was  also  written  on  a  piece  of 
paper  or  parchment,  as  was  every  other  charter  creating 
an  English  colony  in  America.  Whenever  a  form  of 
government,  not  having  grown  up  by  custom,  has  to 
be  put  in  force  immediately,  or,  having  grown  up  by 
custom,  has  to  be  formulated  for  any  purpose,  it  is 
natural  and  even  necessary  to  state  it  in  writing.  There 
is  nothing  wonderful  about  it ;  and  most  people  who 
can  read  and  write  have  wit  enough  to  do  it 

Our  system  of  recording  deeds  and  mortgages,  which 
Mr.  Campbell  mentions  so  often  as  copied  from  Hol- 
land, might  also  have  been  copied  from  Egypt,  where 
he  admits  it  once  prevailed.  But  the  colonists  did  not 
have  to  go  so  far  even  as  Holland  to  imitate  it,  because 
certain  deeds,  called  deeds  of  bargain  and  sale,  were 
recorded  in  England  by  the  statute  of  Henry  VIIL, 
c.  1 6.  Mr.  Campbell  seems  to  have  been  totally  un- 
aware of  this.  It  may  not  have  been  mentioned  in 
Carnegie's  "Triumphant  Democracy,"  or  in  the  maga- 
zine articles  he  consulted,  and  he  wastes  pages  and 
pages  of  rhetoric  on  the  importance  of  this  gift  from 
Holland. 

The  recording  of  deeds  is  one  of  those  convenient 
devices  which  have  been  known  from  time  immemorial. 
No  one  nation  can  claim  the  credit  of  its  invention,  es- 
pecially as  it  is  a  rather  obvious  method  of  accomplish- 
ing certain  results.  But  some  nations  have  adopted  it, 
some  have  not,  and  some  have  adopted  it  only  in  part 
The  Pilgrim  Fathers,  who  had  lived  in  Holland,  did  not 
introduce  it  in  Massachusetts ;  but  the  Puritans,  who 
had  never  lived  in  Holland,  introduced  it,  and  it  was 

368 


Dutch  Sources 

introduced  by  the  English  proprietors  of  both  East  Jer- 
sey and  West  Jersey  in  their  frames  of  government 

Along  with  the  recording  of  deeds,  Mr.  Campbell  has 
much  to  say  about  the  equal  inheritance  of  land,  which, 
he  insists,  was  introduced  into  this  country  from  Hol- 
land, as  opposed  to  the  system  of  primogeniture  which 
prevailed  in  England.  In  this  matter  also  he  wastes 
many  pages  of  rhetoric  on  the  dreadful  evils  of  primo- 
geniture, which  would  be  crippling  and  suffocating  us 
to-day  if  it  had  not  been  for  Holland. 

His  mistake  here  is  one  which  almost  any  law-student 
could  correct  Before  the  Norman  conquest  there  was 
no  primogeniture  in  England,  and  land  descended  to 
children  in  equal  proportions.  The  Normans  intro- 
duced the  feudal  system,  and  with  it  primogeniture, 
which  was  absolutely  essential  to  the  military  character 
of  that  system.  The  old  Saxon  system  of  equal  inherit- 
ance, however,  survived  in  the  county  of  Kent ;  and 
most  of  the  charters  which  created  the  English  colonies 
in  America  recited  that  the  land  should  be  held  on  the 
same  tenure  as  prevailed  in  "  his  Majesty's  Manor  of 
East  Greenwich  and  County  of  Kent"  This  was  done 
because  the  feudal  land  tenures  and  primogeniture 
would  be  unsuited  to  a  wilderness  country,  where  there 
was  no  aristocracy  nor  any  of  the  conditions  which 
supported  primogeniture  in  England. 

In  Massachusetts,  where  Mr.  Campbell  supposes  the 
Dutch  influence  was  so  strong,  the  land  was  expressly 
held  as  "  of  East  Greenwich"  both  in  the  Plymouth 
colony  and  among  the  Puritans  (Winthrop's  "  New  Eng- 
land," vol.  ii.  p.  301;  Palfrey's  "  New  England,"  p.  20); 
«4  3<^ 


Evolution  of  the  Constitution 

and  when  New  York  was  taken  from  the  Dutch  by  the 
English,  this  same  tenure  of  "  East  Greenwich  and  the 
County  of  Kent"  was  introduced. 

It  may  be  well,  also,  to  say  something  of  Mr.  Camp- 
bell's statement  that  the  common-  or  free-school  system 
of  New  England  was  copied  from  Holland.  The  im- 
portance of  free  schools  has  always  been  obvious,  and 
there  were  free  schools  in  the  Middle  Ages.  In  the 
Reformation  they  were  recommended  in  several  coun- 
tries of  Europe.  Luther  advocated  them,  and,  with 
Melanchthon,  drew  up  the  Saxon  school  system.  They 
were  gradually  developed  in  Germany  up  to  1618; 
several  German  states  had  compulsory  education  laws, 
and  John  Knox  had  urged  their  adoption  in  Scotland 
in  1560. 

In  New  England  they  were  a  gradual  native  growth. 
The  first  schools  were  not  free,  but  were  kept  up  by  the 
people  as  best  they  could  from  contributions  and  pay- 
ments for  tuition.  Even  the  famous  law  which  directed 
each  township  of  fifty  householders  to  have  a  school- 
teacher provided  that  his  "  wages  shall  be  paid  by  the 
parents  or  masters  of  such  children,  or  by  the  inhab- 
itants in  general  by  way  of  a  supply."  The  Puritans 
finally  worked  out  a  general  free-school  system  because 
they  were  enthusiastic  believers  in  education  and  learn- 
ing, and  their  religion  was  of  a  sort  that  required  much 
erudition  and  intellectual  keenness.  They  established 
the  free  schools  in  the  same  spirit  which  led  them 
to  establish  Harvard  College.  But  if  we  are  looking 
for  the  first  free  school  in  America  we  shall  find  it  in 
1 62 1  at  Charles  City,  Virginia, — a  part  of  the  country 

370 


Dutch  Sources 

which  Mr.  Campbell  assures  us  was  entirely  free  from 
Dutch  influence. 

It  would  be  useless  to  follow  up  all  his  extraordinary 
statements  of  the  effect  of  Dutch  influence.  They  are 
simply  the  ingenuity  of  a  brilliant  mind  carried  away 
by  a  mere  theory.  But  I  shall  call  attention  to  one  or 
two  points  where  he  has  attempted  to  show  Dutch  imi- 
tation in  the  development  of  the  Federal  government. 
Finding  that  in  the  States-General  of  the  Netherlands 
each  province  had  only  one  vote,  and  that  when  the 
Continental  Congress  assembled  at  the  outbreak  of  the 
Revolution  each  colony  had  only  one  vote,  he  says  that 
one  was  imitated  from  the  other. 

This  question  whether  the  colonies  should  each  be 
represented  according  to  its  population,  or  whether  each 
should  have  only  one  vote  in  any  union  that  Wcis  formed, 
was,  as  we  have  shown  in  previous  chapters,  an  old 
problem  that  had  been  discussed  in  the  plans  of  union 
proposed  previous  to  the  Revolution  and  solved  in  dif- 
ferent ways.  The  general  opinion  seems  to  have  leaned 
in  favor  of  representation  in  proportion  to  population, 
but  every  one  felt  that  the  statistics  of  population  were 
so  inaccurate  that  it  would  be  unsafe  to  adopt  this  plan. 
When  the  Continental  Congress  first  assembled  in  Phila- 
delphia, in  September,  1774,  the  subject  was  debated, 
and  John  Adams  gives  the  debate  in  his  diary,  with  the 
speeches  of  the  different  members.  (Adams's  Works, 
vol.  ii.  p.  366.) 

In  the  whole  of  this  debate  there  is  not  a  word  about 
the  Netherlands.  On  the  contrary,  the  general  feeling 
was  evidently  in  favor  of  representation  by  population, 

37* 


Evolution  of  the  Constitution 

but  it  was  thought  impracticable  to  adopt  it  without 
more  accurate  information.  A  resolution  was  finally 
passed  which  gives  the  reason  for  allowing  each  colony 
only  a  single  vote,  and  it  is  certainly  not  Dutch  : 

"That  in  determining  questions  in  this  Congress  each  colony 
or  province  shall  have  one  vote  ;  the  Congress  not  being  pos- 
sessed of,  or  at  present  able  to  procure  proper  materials  for  ascer- 
taining the  importance  of  each  colony."  ("Journals  of  Conti- 
nental Congress,"  vol.  i.  p.  lo.) 

If  there  is  anything  in  the  Articles  of  Confederation  or 
the  Constitution  that  was  imitated  from  the  Netherlands, 
the  debates  would  surely  disclose  it,  and  also  the  pam- 
phlets that  were  published  criticising  the  Constitution 
when  it  was  before  the  people  for  adoption.  Mr.  Camp- 
bell makes  no  quotations  from  any  of  these  original 
authorities  to  support  his  assertions.  He  relies  entirely 
on  possibilities  and  presumptions.  I  have  accordingly 
examined  the  debates  and  pamphlets,  to  see  if  there 
was  anything  that  would  support  him.  I  find  that  the 
Netherlands  are  often  referred  to,  and  also  Rome, 
Greece,  Denmark,  Poland,  Germany,  Spain,  England, 
and  Switzerland.  The  general  tone  is  not  one  of  imi- 
tation, but  rather  of  dislike  and  contempt  for  all  Eu- 
ropean institutions,  and  I  can  find  nothing  that  recom- 
mends plagiarism. 

"  Dr.  Rush  took  notice  that  the  decay  of  the  liberties  of  the 
Dutch  Republic  proceeded  from  three  causes :  i .  The  perfect 
unanimity  requisite  on  all  occasions.  2.  Their  obligations  to 
consult  their  constituents.  3.  Their  voting  by  provinces.  This 
last  destroyed  the  equality  of  representation,  and  the  liberties  of 
Great  Britain,  also,  are  sinking  from  the  same  defect."  (Elliot's 
Debates,  vol.  i.  p.  'jt.') 

372 


Dutch  Sources 

Voting  by  states  or  provinces  was  by  no  means  a  dis- 
covery of  the  Dutch.  Hopkins,  who  followed  Dr.  Rush, 
reminded  his  hearers  that  voting  by  states  was  practised 
in  Germany  and  Switzerland  as  well  as  in  Holland.  If 
the  voting  by  colonies  in  the  Articles  of  Confederation 
was  an  imitation,  from  which  country  was  it  imitated  ? 
Wilson,  the  next  member  to  speak,  said, — 

"  The  Germanic  body  is  a  burlesque  on  government,  and  their 
practice  on  any  point  is  a  sufficient  authority  and  proof  that  it  is 
wrong.  The  greatest  imperfection  in  the  constitution  of  the 
Belgic  confederacy  is  their  voting  by  provinces."  (Elliot's  De- 
bates, vol.  i.  p.  78.) 

• '  Mr.  Wilson  urged  the  necessity  of  two  branches ;  observed 
that  if  a  proper  model  was  not  to  be  found  in  other  confederacies 
it  was  not  to  be  wondered  at.  The  number  of  them  was  small 
and  the  duration  of  some  at  least  short.  The  Amphictyonic  and 
Achaean  were  formed  in  the  infancy  of  political  science  and  appear 
by  their  history  and  fate  to  have  contained  radical  defects.  The 
Swiss  and  Belgic  confederacies  were  held  together  not  by  any 
vital  principle  of  energy,  but  by  the  incumbent  pressure  of  for- 
midable neighboring  nations.  The  German  owed  its  continuance 
to  the  influence  of  the  house  of  Austria.  He  appealed  to  our 
own  experience  for  the  defects  of  our  confederacy."  (Elliot's 
Debates,  Supplement,  vol.  v.  p.  219.) 

Mr.  Pinckney.  "  The  people  of  this  country  are  not  only  very 
different  from  the  inhabitants  of  any  state  we  are  acquainted  with 
in  the  modern  world,  but  I  assert  that  their  situation  is  distinct 
from  either  the  people  of  Greece  or  Rome,  or  of  any  states  we  are 
acquainted  with  among  the  ancients.  Can  the  orders  introduced 
by  the  institutions  of  Solon,  can  they  be  found  in  the  United 
States  ?  Can  the  military  habits  and  manners  of  Sparta  be  re- 
sembled to  ours  in  habits  and  manners  ?  Are  the  distinctions  of 
patrician  and  plebeian  known  among  us  ?  Can  the  Helvic  or 
Belgic   confederacies,    or  can  the  unwieldy,    unmeaning  body 

373 


Evolution  of  the  Constitution 

called  the  Germanic  empire,  can  they  be  said  to  possess  the  same, 
or  a  situation  like  ours  ?"     i^Id.,  p.  236.) 

Mr.  Madison.  "  What  is  the  state  of  things  in  the  lax  system 
of  the  Dutch  confederacy  ?  Holland  contains  about  half  the  peo- 
ple, supplies  about  half  the  money,  and,  by  her  influence,  silently 
and  indirectly  governs  the  whole  republic."     {Id.,  p.  252.) 

Mr.  Gouverneur  Morris.  "The  United  Netherlands  are  at 
this  time  torn  in  factions.  With  these  examples  before  our  eyes 
shall  we  form  establishments  which  must  necessarily  produce  the 
same  effects ?"     {Id.,  p.  287.) 

When  the  Constitution  was  referred  to  the  people  for 
adoption,  it  was  thought  so  unlike  anything  in  Holland 
or  in  any  other  country  of  Europe  that  some  of  its  en- 
emies complained  of  it  There  is  an  interesting  passage 
on  this  point  in  an  able  pamphlet  of  the  time  : 

"The  enemies  of  the  proposed  constitution  have  deemed  it 
material  to  show  that  such  a  one  never  existed  before.  It  does 
not,  indeed,  agree  with  definitions  in  books  taken  from  the  Am- 
phictyonic  Council,  the  United  Netherlands,  or  the  Helvic  Body. 
They  would,  therefore,  infer  that  it  is  wrong.  This  mode  of  rea- 
soning deserves  not  a  serious  refutation.  The  convention  exam- 
ined those  several  constitutions,  if  such  they  can  be  called.  It 
found  them  either  woefully  defective  as  to  their  own  particular 
object  or  inapplicable  to  ours.  Peradventure  our  own  Articles  of 
Confederation  in  theory  appear  more  perfect  than  any  of  them." 
("  Remarks  on  the  Proposed  Plan  of  a  Federal  Government," 
by  Aristides,  p,  13.) 


374 


APPENDIX 

Constitution  of  the  United  States 

We  the  People  of  the  United  States,  in  Order  to  form  a  more 
perfect  Union,  establish  Justice,  insure  domestic  Tranquility,  pro- 
vide for  the  common  defence,  promote  the  general  Welfare,  and 
secure  the  Blessings  of  Liberty  to  ourselves  and  our  Posterity,  do 
ordain  and  establish  this  Constitution  for  the  United  States  of 
America. 

ARTICLE   1. 

Section  i.  All  legislative  Powers  herein  granted  shall  be 
vested  in  a  Congress  of  the  United  States,  which  shall  consist  of 
a  Senate  and  House  of  Representatives. 

Section  2.  The  House  of  Representatives  shall  be  composed 
of  Members  chosen  ever)'  second  Year  by  the  People  of  the  sev- 
eral States,  and  the  Electors  in  each  State  shall  have  the  QuaHfi- 
cations  requisite  for  Electors  of  the  most  numerous  Branch  of  the 
State  Legislature. 

No  Person  shall  be  a  Representative  who  shall  not  have  at- 
tained to  the  Age  of  twenty-five  Years,  and  been  seven  Years  a 
Citizen  of  the  United  States,  and  who  shall  not,  when  elected,  be 
an  Inhabitant  of  that  State  in  which  he  shall  be  chosen. 

[Representatives  and  direct  Taxes  shall  be  apportioned  among 
the  several  States  which  may  be  included  within  this  Union,  ac- 
cording to  their  respective  Numbers,  which  shall  be  determined 
by  adding  to  the  whole  Number  of  Free  persons,  including  those 
bound  to  Service  for  a  Term  of  Years,  and  excluding  Indians  not 
taxed,  three  fifths  of  all  other  Persons.]*  The  actual  Enumera- 
tion shall  be  made  within  three  Years  after  the  first  Meeting  of 

*  The  clause  included  within  brackets  has  been  altered  by  the  Four- 
teenth Amendment,  section  2. 

375 


Evolution  of  the  Constitution 

the  Congress  of  the  United  States,  and  within  every  subsequent 
Term  of  ten  Years,  in  such  Manner  as  they  shall  by  Law  direct. 
The  Number  of  Representatives  shall  not  exceed  one  for  every 
thirty  Thousand,  but  each  State  shall  have  at  Least  one  Repre- 
sentative ;  and  until  such  enumeration  shall  be  made,  the  State 
of  New  Hampshire  shall  be  entitled  to  chuse  three,  Massachusetts 
eight,  Rhode  Island  and  Providence  Plantations  one,  Connecticut 
five.  New  York  six,  New  Jersey  four,  Pennsylvania  eight,  Dela- 
ware one,  Maryland  six,  Virginia  ten,  North  Carolina  five.  South 
Carolina  five,  and  Georgia  three. 

When  vacancies  happen  in  the  Representation  from  any  State, 
the  Executive  Authority  thereof  shall  issue  Writs  of  Election  to 
fill  such  Vacancies. 

The  House  of  Representatives  shall  chuse  their  Speaker  and 
other  Officers  ;  and  shall  have  the  sole  Power  of  Impeachment. 

Section  3.  The  Senate  of  the  United  States  shall  be  composed 
of  two  Senators  from  each  State,  chosen  by  the  Legislature  there- 
of, for  six  Years  ;  and  each  Senator  shall  have  one  Vote. 

Immediately  after  they  shall  be  assembled  in  Consequence  of 
the  first  Election,  they  shall  be  divided  as  equally  as  may  be  into 
three  Classes.  The  seats  of  the  Senators  of  the  first  Class  shall 
be  vacated  at  the  Expiration  of  the  second  year,  of  the  second 
Class  at  the  Expiration  of  the  fourth  Year,  and  of  the  third  Class 
at  the  Expiration  of  the  sixth  Year,  so  that  one-third  may  be 
chosen  every  second  Year  ;  and  if  Vacancies  happen  by  Resig- 
nation, or  otherwise,  during  the  Recess  of  the  Legislature  of  any 
State,  the  Executive  thereof  may  make  temporary  Appointments 
until  the  next  Meeting  of  the  Legislature,  which  shall  then  fill 
such  Vacancies. 

No  Person  shall  be  a  Senator  who  shall  not  have  attained  to 
the  Age  of  thirty  Years,  and  been  nine  Years  a  Citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  Inhabitant 
of  that  State  for  which  he  shall  be  chosen. 

The  Vice  President  of  the  United  States  shall  be  President  of 
the  Senate,  but  shall  have  no  Vote,  unless  they  be  equally 
divided. 

The  Senate  shall  chuse  their  other  Officers,  and  also  a  Presi- 

376 


Appendix 

dent  pro  tempore,  in  the  Absence  of  the  Vice  President,  or  when 
he  shall  exercise  the  Office  of  President  of  the  United  States. 

The  Senate  shall  have  the  sole  Power  to  try  all  Impeachments. 
When  sitting  for  that  Purpose,  they  shall  be  on  Oath  or  Affirma- 
tion. When  the  President  of  the  United  States  is  tried,  the  Chief 
Justice  shall  preside  :  and  no  Person  shall  be  convicted  without 
the  Concurrence  of  two  thirds  of  the  Members  present. 

Judgment  in  Cases  of  Impeachment  shall  not  extend  further 
than  to  removal  from  Office,  and  disqualification  to  hold  and  en- 
joy any  Office  of  honor.  Trust  or  Profit  under  the  United  States  : 
but  the  Party  convicted  shall  nevertheless  be  liable  and  subject 
to  Indictment,  Trial,  Judgment  and  Punishment,  according  to 
Law. 

Section  4.  The  Times,  Places  and  manner  of  holding  Elec- 
tions for  Senators  and  Representatives,  shall  be  prescribed  in 
each  State  by  the  Legislature  thereof ;  but  the  Congress  may  at 
any  time  by  Law  make  or  alter  such  Regulations,  except  as  to 
the  Places  of  chusing  Senators. 

The  Congress  shall  assemble  at  least  once  in  every  Year,  and 
such  Meeting  shall  be  on  the  first  Monday  in  December,  unless 
they  shall  by  Law  appoint  a  different  Day. 

Section  5.  Each  House  shall  be  the  Judge  of  the  Elections, 
Returns  and  Qualifications  of  its  own  Members,  and  a  Majority 
of  each  shall  constitute  a  Quorum  to  do  Business  ;  but  a  smaller 
Number  may  adjourn  from  day  to  day,  and  may  be  authorized 
to  compel  the  Attendance  of  absent  Members,  in  such  Manner, 
and  under  such  Penalties  as  each  House  may  provide. 

Each  House  may  determine  the  Rules  of  its  Proceedings,  pun- 
ish its  Members  for  disorderly  Behaviour,  and,  with  the  Concur- 
rence of  two  thirds,  expel  a  Member. 

Each  House  shall  keep  a  Journal  of  its  Proceedings,  and  from 
time  to  time  publish  the  same,  excepting  such  Parts  as  may  in 
their  Judgment  require  Secrecy  ;  and  the  Yeas  and  Nays  of  the 
Members  of  either  House  on  any  question  shall,  at  the  Desire  of 
one  fifth  of  those  present,  be  entered  on  the  Journal. 

Neither  House,  during  the  Session  of  Congress,  shall,  without 
the  Consent  of  the  other,  adjourn  for  more  than  three  days,  nor 

377 


Evolution  of  the  Constitution 

to  any  other  Place  than  that  in  which  the  two  Houses  shall  be 

sitting. 

Section  6.  The  Senators  and  Representatives  shall  receive  a 
Compensation  for  their  services,  to  be  ascertained  by  Law,  and 
paid  out  of  the  Treasury  of  the  United  States.  They  shall  in  all 
Cases,  except  Treason,  Felony  and  Breach  of  the  Peace,  be  privi- 
leged from  Arrest  during  their  Attendance  at  the  Session  of  their 
respective  Houses,  and  in  going  to  and  returning  from  the  same  ; 
and  for  any  Speech  or  Debate  in  either  House,  they  shall  not  be 
questioned  in  any  other  Place. 

No  Senator  or  Representative  shall,  during  the  Time  for  which 
he  was  elected,  be  appointed  to  any  civil  Office  under  the  Au- 
thority of  the  United  States,  which  shall  have  been  created,  or  the 
Emoluments  whereof  shall  have  been  encreased  during  such  time  ; 
and  no  Person  holding  any  Office  under  the  United  States,  shall 
be  a  Member  of  either  House  during  his  Continuance  in  Office. 

Section  7.  All  bills  for  raising  Revenue  shall  originate  in  the 
House  of  Representatives  ;  but  the  Senate  may  propose  or  concur 
with  Amendments  as  on  other  Bills. 

Every  Bill  which  shall  have  passed  the  House  of  Represen- 
tatives and  the  Senate,  shall,  before  it  become  a  Law,  be  pre- 
sented to  the  President  of  the  United  States ;  if  he  approve  he 
shall  sign  it,  but  if  not  he  shall  return  it,  with  his  Objections  to 
that  House  in  which  it  shall  have  originated,  who  shall  enter  the 
Objections  at  large  on  their  Journal,  and  proceed  to  reconsider  it. 
If  after  such  Reconsideration  two  thirds  of  that  House  shall  agree 
to  pass  the  Bill,  it  shall  be  sent,  together  with  the  Objections,  to 
the  other  House,  by  which  it  shall  likewise  be  reconsidered,  and 
if  approved  by  two-thirds  of  that  House,  it  shall  become  a  Law. 
But  in  all  such  Cases  the  Votes  of  both  Houses  shall  be  deter- 
mined by  yeas  and  Nays,  and  the  Names  of  the  Persons  voting  for 
and  against  the  Bill  shall  be  entered  on  the  Journal  of  each  House 
respectively.  If  any  Bill  shall  not  be  returned  by  the  President 
within  ten  Days  (Sundays  excepted)  after  it  shall  have  been  pre- 
sented to  him,  the  Same  shall  be  a  Law,  in  like  Manner  as  if  he 
had  signed  it,  unless  the  Congress  by  their  Adjournment  prevent 
its  Return,  in  which  Case  it  shall  not  be  a  Law. 

37S 


Appendix 

Every  Order,  Resolution,  or  Vote  to  which  the  Concurrence  of 
the  Senate  and  House  of  Representatives  may  be  necessary  (ex- 
cept on  a  question  of  Adjournment)  shall  be  presented  to  the 
President  of  the  United  States  ;  and  before  the  Same  shall  take 
Effect,  shall  be  approved  by  him,  or  being  disapproved  by  him, 
shall  be  repassed  by  two  thirds  of  the  Senate  and  House  of  Rep- 
resentatives, according  to  the  Rules  and  Limitations  prescribed 
in  the  Case  of  a  Bill, 

Section  8.  The  Congress  shall  have  Power  to  lay  and  collect 
Taxes,  Duties,  Imposts  and  Excises,  to  pay  the  Debts  and  pro- 
vide for  the  common  Defence  and  general  Welfare  of  the  United 
States ;  but  all  Duties,  Imposts  and  Excises  shall  be  uniform 
throughout  the  United  States  ; 

To  borrow  Money  on  the  credit  of  the  United  States  ; 

To  regulate  Commerce  with  foreign  Nations,  and  among  the 
several  States,  and  with  the  Indian  Tribes  ; 

To  establish  an  uniform  Rule  of  Naturalization,  and  uniform 
Laws  on  the  subject  of  Bankruptcies  throughout  the  United 
States ; 

To  coin  Money,  regulate  the  Value  thereof,  and  of  foreign  Coin, 
and  fix  the  Standard  of  Weights  and  Measures  ; 

To  provide  for  the  Punishment  of  counterfeiting  the  Securities 
and  current  Coin  of  the  United  States  ; 

To  establish  Post  Offices  and  post  Roads  ; 

To  promote  the  Progress  of  Science  and  useful  Arts,  by  se- 
curing for  limited  Times  to  Authors  and  Inventors  the  exclusive 
Right  to  their  respective  Writings  and  Discoveries  ; 

To  constitute  Tribunals  inferior  to  the  supreme  Court ; 

To  define  and  punish  Piracies  and  Felonies  committed  on  the 
high  Seas,  and  Offences  against  the  Law  of  Nations ; 

To  declare  War,  grant  Letters  of  Marque  and  Reprisal,  and 
make  Rules  concerning  Captures  on  Land  and  Water ; 

To  raise  and  support  Armies,  but  no  Appropriation  of  Money 
to  that  Use  shall  be  for  a  longer  Term  than  two  Years ; 

To  provide  and  maintain  a  Navy ; 

To  make  Rules  for  the  Government  and  Regulation  of  the  land 
and  naval  Forces ; 

379 


Evolution  of  the  Constitution 

To  provide  for  calling  forth  the  Militia  to  execute  the  Laws  of 
the  Union,  suppress  Insurrections  and  repel  Invasions  ; 

To  provide  for  organizing,  arming,  and  disciplining,  the  Militia, 
and  for  governing  such  Part  of  them  as  may  be  employed  in  the 
Service  of  the  United  States,  reserving  to  the  States  respectively, 
the  Appointment  of  the  Officers,  and  the  Authority  of  training  the 
Militia  according  to  the  discipline  prescribed  by  Congress  ; 

To  exercise  exclusive  Legislation  in  all  Cases  whatsoever,  over 
such  District  (not  exceeding  ten  Miles  square)  as  may,  by  Ces- 
sion of  particular  States,  and  the  Acceptance  of  Congress,  become 
the  Seat  of  the  Government  of  the  United  States,  and  to  exercise 
like  Authority  over  all  Places  purchased  by  the  Consent  of  the 
Legislature  of  the  State  in  which  the  Same  shall  be,  for  the  Erec- 
tion of  Forts,  Magazines,  Arsenals,  dock-Yards,  and  other  need- 
ful Buildings  ; — And 

To  make  all  Laws  which  shall  be  necessary  and  proper  for 
carrying  into  Execution  the  foregoing  Powers,  and  all  other 
Powers  vested  by  this  Constitution  in  the  Government  of  the 
United  States,  or  in  any  Department  or  Officer  thereof. 

Section  9.  The  Migration  or  Importation  of  such  Persons  as 
any  of  the  States  now  existing  shall  think  proper  to  admit,  shall 
not  be  prohibited  by  the  Congress  prior  to  the  Year  one  thousand 
eight  hundred  and  eight,  but  a  Tax  or  duty  may  be  imposed  on 
such  Importation,  not  exceeding  ten  dollars  for  each  Person. 

The  Privilege  of  the  Writ  of  Habeas  Corpus  shall  not  be  sus- 
pended, unless  when  in  Cases  of  Rebellion  or  Invasion  the  public 
Safety  may  require  it. 

No  Bill  of  Attainder  or  ex  post  facto  Law  shall  be  passed. 

No  Capitation,  or  other  direct,  tax  shall  be  laid,  unless  in  Pro- 
portion to  the  Census  or  Enumeration  herein  before  directed  to 
be  taken. 

No  Tax  or  Duty  shall  be  laid  on  Articles  exported  from  any 
State. 

No  Preference  shall  be  given  by  any  Regulation  of  Commerce 
or  Revenue  to  the  Ports  of  one  State  over  those  of  another  :  nor 
shall  Vessels  bound  to,  or  from,  one  State,  be  obliged  to  enter, 
clear,  or  pay  Duties  in  another. 

380 


Appendix 

No  Money  shall  be  drawn  from  the  Treasury,  but  in  Conse- 
quence of  Appropriations  made  by  Law  ;  and  a  regular  Statement 
and  Account  of  the  Receipts  and  Expenditures  of  all  public 
Money  shall  be  published  from  time  to  time. 

No  Title  of  Nobility  shall  be  granted  by  the  United  States  : 
And  no  Person  holding  any  Office  of  Profit  or  Trust  under  them, 
shall,  without  the  Consent  of  the  Congress,  accept  of  any  present. 
Emolument,  Office,  or  Title,  of  any  kind  whatever,  from  any 
King,  Prince,  or  foreign  State. 

Section  io.  No  State  shall  enter  into  any  Treaty,  Alliance, 
or  Confederation  ;  grant  Letters  of  Marque  and  Reprisal ;  coin 
Money  ;  emit  Bills  of  Credit ;  make  any  Thing  but  gold  and 
silver  Coin  a  Tender  in  Payment  of  Debts  ;  pass  any  Bill  of 
Attainder,  ex  post  facto  Law,  or  Law  impairing  the  Obligation 
of  Contracts,  or  grant  any  Title  of  NobiUty. 

No  State  shall,  without  the  Consent  of  the  Congress,  lay  any 
Imposts  or  Duties  on  Imports  or  Exports,  except  what  may  be 
absolutely  necessary  for  executing  it's  inspection  Laws  :  and  the 
net  Produce  of  all  Duties  and  Imposts,  laid  by  any  State  on  Im- 
ports or  Exports,  shall  be  for  the  Use  of  the  Treasury  of  the 
United  States  ;  and  all  such  Laws  shall  be  subject  to  the  Revision 
and  Controul  of  the  Congress. 

No  State  shall,  without  the  Consent  of  Congress,  lay  any  Duty 
of  Tonnage,  keep  Troops,  or  Ships  of  War  in  time  of  Peace,  enter 
into  any  Agreement  or  Compact  with  another  State,  or  with  a 
foreign  Power,  or  engage  in  War,  unless  actually  invaded,  or  in 
such  imminent  Danger  as  will  not  admit  of  delay. 

ARTICLE   II. 

Section  i.  The  executive  Power  shall  be  vested  in  a  President 
of  the  United  States  of  America.  He  shall  hold  his  Office  during 
the  Term  of  four  Years,  and,  together  with  the  Vice  President, 
chosen  for  the  same  Term,  be  elected,  as  follows 

Each  State  shall  appoint,  in  such  Manner  as  the  Legislature 
thereof  may  direct,  a  Number  of  Electors,  equal  to  the  whole 
Number  of  Senators  and  Representatives  to  which  the  State  may 
be  entitled  in  the  Congress  :  but  no  Senator  or  Representative, 

3S1 


Evolution  of  the  Constitution 

or  Person  holding  an  Office  of  Trust  or  Profit  under  the  United 
States,  shall  be  appointed  an  Elector. 

[The  electors  shall  meet  in  their  respective  States,  and  vote  by 
ballot  for  two  persons,  of  whom  one  at  least  shall  not  be  an  in- 
habitant of  the  same  State  with  themselves.  And  they  shall 
make  a  list  of  all  the  persons  voted  for,  and  of  the  number  of 
votes  for  each  ;  which  list  they  shall  sign  and  certify,  and  trans- 
mit sealed  to  the  seat  of  the  Government  of  the  United  States, 
directed  to  the  President  of  the  Senate.  The  President  of  the 
Senate  shall,  in  the  presence  of  the  Senate  and  House  of  Repre- 
sentatives, open  all  the  certificates,  and  the  votes  shall  then  be 
counted.  The  person  having  the  greatest  number  of  votes  shall 
be  the  President,  if  such  number  be  a  majority  of  the  whole 
number  of  electors  appointed  ;  and  if  there  be  more  than  one 
who  have  such  majority,  and  have  an  equal  number  of  votes, 
then  the  House  of  Representatives  shall  immediately  chuse  by 
ballot  one  of  them  for  President ;  and  if  no  person  have  a  ma- 
jority, then  from  the  five  highest  on  the  fist  the  said  House  shall 
in  like  manner  chuse  the  President.  But  in  chusing  the  Presi- 
dent, the  votes  shall  be  taken  by  States,  the  representation  from 
each  State  having  one  vote  ;  a  quorum  for  this  purpose  shall  con- 
sist of  a  member  or  members  from  two-thirds  of  the  States,  and  a 
majority  of  all  the  States  shall  be  necessary  to  a  choice.  In  every 
case,  after  the  choice  of  the  President,  the  person  having  the 
greatest  number  of  votes  of  the  electors  shall  be  the  Vice  Presi- 
dent. But  if  there  should  remain  two  or  more  who  have  equal  votes, 
the  Senate  shall  chuse  from  them  by  ballot  the  Vice  President.]* 

The  Congress  may  determine  the  Time  of  chusing  the  Electors, 
and  the  Day  on  which  they  shall  give  their  Votes ;  which  Day 
shall  be  the  same  throughout  the  United  States. 

No  person  except  a  natural  bom  Citizen,  or  a  Citizen  of  the 
United  States,  at  the  time  of  the  Adoption  of  this  Constitution, 
shall  be  eligible  to  the  Office  of  President ;  neither  shall  any  Per- 
son be  eligible  to  that  office  who  shall  not  have  attained  to  the 

*The  clause  included  within  brackets  has  been  superseded  by  the 
Twelfth  Amendment. 

382 


Appendix 

Age  of  thirty  five  Years,  and  been  fourteen  Years  a  Resident 
within  the  United  States. 

In  Case  of  the  Removal  of  the  President  from  Office,  or  of  his 
Death,  Resignation  or  Inability  to  discharge  the  Powers  and 
Duties  of  the  said  Office,  the  Same  shall  devolve  on  the  Vice 
President,  and  the  Congress  may  by  Law  provide  for  the  Case  of 
Removal,  Death,  Resignation  or  Inability,  both  of  the  President 
and  Vice  President,  declaring  what  Officer  shall  then  act  as  Presi- 
dent, and  such  Officer  shall  act  accordingly,  until  the  Disability 
be  removed,  or  a  President  shall  be  elected. 

The  President  shall,  at  stated  Times,  receive  for  his  Services, 
a  Compensation,  which  shall  neither  be  encreased  nor  dimin- 
ished during  the  Period  for  which  he  shall  have  been  elected, 
and  he  shall  not  receive  within  that  Period  any  other  Emolument 
from  the  United  States,  or  any  of  them. 

Before  he  enter  on  the  Execution  of  his  Office,  he  shall  take 
the  following  Oath  or  Affirmation: — "I  do  solemnly  swear  (or 
affirm)  that  I  will  faithfully  execute  the  Office  of  President  of  the 
United  States,  and  will  to  the  best  of  my  Ability,  preserve,  pro- 
tect and  defend  the  Constitution  of  the  United  States." 

Section  2.  The  President  shall  be  Commander  in  Chief  of  the 
Army  and  Navy  of  the  United  States,  and  of  the  Militia  of  the 
several  States,  when  called  into  the  actual  Service  of  the  United 
States ;  he  may  require  the  Opinion,  in  writing,  of  the  principal 
Officer  in  each  of  the  executive  Departments,  upon  any  Subject 
relating  to  the  Duties  of  their  respective  Offices,  and  he  shall  have 
Power  to  grant  Reprieves  and  Pardons  for  Offences  against  the 
United  States,  except  in  Cases  of  Impeachment. 

He  shall  have  Power,  by  and  with  the  Advice  and  Consent  of 
the  Senate,  to  make  Treaties,  provided  two  thirds  of  the  Senators 
present  concur ;  and  he  shall  nominate,  and  by  and  with  the 
Advice*  and  Consent  of  the  Senate,  shall  appoint  Ambassadors, 
other  public  Ministers  and  Consuls,  Judges  of  the  supreme  Court, 
and  all  other  Officers  of  the  United  States,  whose  Appointments 
are  not  herein  otherwise  provided  for,  and  which  shall  be  estab- 
lished by  Law :  but  the  Congress  may  by  Law  vest  the  Appoint- 

383 


Evolution  of  the  Constitution 

ment  of  such  inferior  Officers,  as  they  think  proper,  in  the  Presi- 
dent alone,  in  the  Courts  of  Law,  or  in  the  Heads  of  Departments. 

The  President  shall  have  Power  to  fill  up  all  Vacancies  that 
may  happen  during  the  recess  of  the  Senate,  by  granting  Com- 
missions which  shall  expire  at  the  End  of  their  next  Session. 

Section  3.  He  shall  from  time  to  time  give  to  the  Congress 
Information  of  the  state  of  the  Union,  and  recommend  to  their 
Consideration  such  Measures  as  he  shall  judge  necessary  and 
expedient ;  he  may,  on  extraordinary  Occasions,  convene  both 
Houses,  or  either  of  them,  and,  in  Case  of  Disagreement  between 
them,  with  Respect  to  the  Time  of  Adjournment,  he  may  adjourn 
them  to  such  Time  as  he  shall  think  proper ;  he  shall  receive 
Ambassadors  and  other  public  Ministers  ;  he  shall  take  Care  that 
the  Laws  be  faithfully  executed,  and  shall  Commission  all  the 
Officers  of  the  United  States. 

Section  4.  The  President,  Vice  President  and  all  civil  Officers 
of  the  United  States,  shall  be  removed  from  Office  on  Impeach- 
ment for,  and  Conviction  of,  Treason,  Bribery,  or  other  high 
Crimes  and  Misdemeanors. 

ARTICLE   III. 

Section  i.  The  judicial  Power  of  the  United  States,  shall  be 
vested  in  one  supreme  Court,  and  in  such  inferior  Courts  as  the 
Congress  may  from  time  to  time  ordain  and  establish.  The 
Judges,  both  of  the  supreme  and  inferior  Courts,  shall  hold  their 
Offices  during  good  Behaviour,  and  shall,  at  stated  Times,  re- 
ceive for  their  Services,  a  Compensation,  which  shall  not  be  di- 
minished during  their  Continuance  in  Office. 

Section  2.  The  judicial  Power  shall  extend  to  all  Cases,  in 
Law  and  Equity,  arising  under  this  Constitution,  the  Laws  of  the 
United  States,  and  Treaties  made,  or  which  shall  be  made,  under 
their  Authority  ; — to  all  Cases  affecting  Ambassadors,  other  pub- 
lic Ministers  and  Consuls  ; — to  all  Cases  of  admiralty  and  mari- 
time Jurisdiction  ; — to  Controversies  to  which  the  United  States 
shall  be  a  Party  ; — to  Controversies  between  two  or  more  States  ; 
— between  a  State  and  Citizens  of  another  State  ; — between  Citi- 

384 


Appendix 

zens  of  different  States, — ^between  Citizens  of  the  same  State  claim- 
ing Lands  under  Grants  of  different  States,  and  between  a  State, 
or  the  Citizens  thereof,  and  foreign  States,  Citizens  or  Subjects. 

In  all  Cases  affecting  Ambassadors,  other  public  Ministers  and 
Consuls,  and  those  in  which  a  State  shall  be  Party,  the  supreme 
Court  shall  have  original  Jurisdiction.  In  all  the  other  Cases 
before  mentioned,  the  supreme  Court  shall  have  appellate  Juris- 
diction, both  as  to  Law  and  Fact,  with  such  Exceptions,  and 
under  such  Regulations  as  the  Congress  shall  make. 

The  Trial  of  all  Crimes,  except  in  Cases  of  Impeachment,  shall 
be  by  Jury  ;  and  such  Trial  shall  be  held  in  the  State  where  the 
said  Crimes  shall  have  been  committed  ;  but  when  not  committed 
within  any  State,  the  Trial  shall  be  at  such  Place  or  Places  as  the 
Congress  may  by  Law  have  directed. 

Section  3.  Treason  against  the  United  States,  shall  consist 
only  in  levying  War  against  them,  or  in  adhering  to  their  Ene- 
mies, giving  them  Aid  and  Comfort.  No  Person  shall  be  con- 
victed of  Treason  unless  on  the  Testimony  of  two  Witnesses  to 
the  same  overt  Act,  or  on  Confession  in  open  Court. 

The  Congress  shall  have  Power  to  declare  the  Punishment  of 
Treason,  but  no  Attainder  of  Treason  shall  work  Corruption  of 
Blood,  or  Forfeiture  except  during  the  Life  of  the  Person  attainted. 

ARTICLE   IV. 

Section  i.  Full  Faith  and  Credit  shall  be  given  in  each  State 
to  the  public  Acts,  Records,  and  judicial  Proceedings  of  every 
other  State.  And  the  Congress  may  by  general  LaA^s  prescribe 
the  Manner  in  which  such  Acts,  Records  and  Proceedings  shall  be 
proved,  and  the  Effect  thereof. 

Section  2.  The  Citizens  of  each  State  shall  be  entitled  to  all 
Privileges  and  Immunities  of  Citizens  in  the  several  States. 

A  person  charged  in  any  State  with  Treason,  Felony,  or  other 
Crime,  who  shall  flee  from  Justice,  and  be  found  in  another  State, 
shall  on  Demand  of  the  executive  Authority  of  the  State  from 
which  he  fled,  be  delivered  up  to  be  removed  to  the  State  having 
Jurisdiction  of  the  Crime. 

as  385 


Evolution  of  the  Constitution 

No  Person  held  to  Service  or  Labour  in  one  State,  under  the 
Laws  thereof,  escaping  into  another,  shall,  in  Consequence  of  any 
Law  or  Regulation  therein,  be  discharged  from  such  Service  or 
Labour,  but  shall  be  delivered  up  on  Claim  of  the  Party  to  whom 
such  Service  or  Labour  may  be  due. 

Section  3.  New  States  may  be  admitted  by  the  Congress  into 
this  Union  ;  but  no  new  State  shall  be  formed  or  erected  within 
the  Jurisdiction  of  any  other  State ;  nor  any  State  be  formed  by 
the  Junction  of  two  or  more  States,  or  Parts  of  States,  without  the 
Consent  of  the  Legislatures  of  the  States  concerned  as  well  as  of 
the  Congress. 

The  Congress  shall  have  Power  to  dispose  of  and  make  all 
needful  Rules  and  Regulations  respecting  the  Territory  or  other 
Property  belonging  to  the  United  States ;  and  nothing  in  this 
Constitution  shall  be  so  construed  as  to  Prejudice  any  Claims  of 
the  United  States,  or  of  any  particular  State. 

Section  4.  The  United  States  shall  guarantee  to  every  State 
in  this  Union  a  Republican  Form  of  Government,  and  shall  pro- 
tect each  of  them  against  Invasion  ;  and  on  Application  of  the 
Legislature,  or  of  the  Executive  (when  the  Legislature  cannot  be 
convened)  against  domestic  Violence. 

ARTICLE  V. 
The  Congress,  whenever  two  thirds  of  both  Houses  shall  deem 
it  necessary,  shall  propose  Amendments  to  this  Constitution,  or, 
on  the  Application  of  the  Legislatures  of  two  thirds  of  the  several 
States,  shall  call  a  Convention  for  proposing  Amendments,  which, 
in  either  Case,  shall  be  vaHd  to  all  Intents  and  Purposes,  as  Part 
of  this  Constitution,  when  ratified  by  the  Legislatures  of  three 
fourths  of  the  several  States,  or  by  Conventions  in  three  fourths 
thereof,  as  the  one  or  the  other  Mode  of  Ratification  may  be  pro- 
posed by  the  Congress  ;  Provided  that  no  Amendment  which 
may  be  made  prior  to  the  Year  One  thousand  eight  hundred  and 
eight  shall  in  any  Manner  affect  the  first  and  fourth  Clauses 
in  the  Ninth  Section  of  the  first  Article;  and  that  no  State, 
without  its  Consent,  shall  be  deprived  of  its  equal  Suffrage  in  the 
Senate. 

386 


Appendix 

ARTICLE   VI. 

All  Debts  contracted  and  Engagements  entered  into,  before 
the  Adoption  of  this  Constitution,  shall  be  as  valid  against  the 
United  States  under  this  Constitution,  as  under  the  Confederation. 

This  Constitution,  and  the  Laws  of  the  United  States  which 
shall  be  made  in  Pursuance  thereof;  and  all  Treaties  made,  or 
which  shall  be  made,  under  the  Authority  of  the  United  States, 
shall  be  the  supreme  Law  of  the  Land  ;  and  the  Judges  in  every 
State  shall  be  bound  thereby,  any  Thing  in  the  Constitution  or 
Laws  of  any  State  to  the  Contrary  notwithstanding. 

The  Senators  and  Representatives  before  mentioned,  and  the 
Members  of  the  several  State  Legislatures,  and  all  executive  and 
judicial  Officers,  both  of  the  United  States  and  of  the  several 
States,  shall  be  bound  by  Oath  or  Affirmation,  to  support  this 
Constitution ;  but  no  religious  Test  shall  ever  be  required  as  a 
Qualification  to  any  Office  or  public  Trust  under  the  United  States. 

ARTICLE  VII. 
The  ratification  of  the  Conventions  of  nine  States,  shall  be  suffi- 
cient for  the  Establishment  of  this  Constitution  between  the  States 
so  ratifying  the  Same. 

Done  in  Convention  by  the  Unanimous  Consent  of  the  States 
present  the  Seventeenth  Day  of  September  in  the  Year  of  our 
Lord  one  thousand  seven  hundred  and  Eighty  seven,  and  of 
the  Independance  of  the  United  States  of  America  the  Twelfth 
In  TDQltnedd  whereof  We  have  hereunto  subscribed  our  Names, 

Go:  WASHINGTON— 
Presidt.  and  Deputy  from  Virginia 

New  Hampshire. 
John  Langdon,  Nicholas  Gilman. 

Massachusetts. 
Nathaniel  Gorham,  Rufus  King. 

Connecticut. 
Wm.  Saml.  Johnson,  Roger  Sherman. 

387 


Evolution  of  the  Constitution 

New  York. 


Alaxander  Hamilton. 

Wil:  Livingston, 
David  Brearley, 

B.  Franklin, 
Thomas  Mifflin, 
RoBT.  Morris, 
Geo.  Clymer, 


New  Jersey. 
Pennsylvania. 

Delaware. 


Geo.  Read, 

Gunning  Bedford,  Jun., 

John  Dickinson, 

Maryland. 
James  McHenry, 
Dan.  Jenifer,  of  St.  Thomas, 


Wm.  Paterson, 
Jona.  Dayton. 

Thos.  Fitzsimons, 
Jared  Ingersoll, 
James  Wilson, 
Gouv.  Morris. 

Richard  Bassett, 
Jagg  :  Broom. 


John  Blair, 


Virginia. 
North  Carolina. 


Wm.  Blount, 

Rich'd  Dobbs  Speight, 


Dan.  Carroll. 

James  Madison,  Jr. 
Hugh  Williamson. 


South  Carolina. 
J.  Rutledge,  Charles  Pinckney, 

Charles  Cotesworth  Pinckney,  Pierce  Butler. 


William  Few, 
Attest : 


Georgia. 

Abr.  Baldwin. 

WILLIAM  JACKSON,  Secretary. 


388 


Appendix 
Amendments 

ARTICLE  I. 
Congress  shall  make  no  law  respecting  an  establishment  of 
religion,  or  prohibiting  the  free  exercise  thereof ;  or  abridging  the 
freedom  of  speech,  or  of  the  press  ;  or  the  right  of  the  people 
peaceably  to  assemble,  and  to  petition  the  Government  for  a 
redress  of  grievances. 

ARTICLE   II. 
A  well-regulated  Militia,  being  necessary  to  the  security  of  a 
free  State,  the  right  of  the  people  to  keep  and  bear  Arms,  shall 
not  be  infringed. 

ARTICLE   III. 
No  Soldier  shall,  in  time  of  peace,  be  quartered  in  any  house, 
without  the  consent  of  the  Owner,  nor  in  time  of  war,  but  in  a 
manner  to  be  prescribed  by  law. 

ARTICLE   IV. 

The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated,  and  no  Warrants  shall  issue,  but  upon 
probable  cause,  supported  by  Oath  or  affirmation,  and  particularly 
describing  the  place  to  be  searched,  and  the  persons  or  things  to 
be  seized. 

ARTICLE  V. 

No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indictment  of  a  Grand 
Jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
Militia,  when  in  actual  service  in  time  of  War  or  public  danger ; 
nor  shall  any  person  be  subject  for  the  same  offence  to  be  twice 
put  in  jeopardy  of  life  or  limb  ;  nor  shall  be  compelled  in  any 
Criminal  Case  to  be  a  witness  against  himself,  nor  be  deprived 
of  life,  liberty,  or  property,  without  due  process  of  law  ;  nor  shall 
private  property  be  taken  for  public  use,  without  just  compensa- 
tion. 

389 


Evolution  of  the  Constitution 

ARTICLE  VI. 
In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right 
to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the  State 
and  district  wherein  the  crime  shall  have  been  committed  ;  which 
district  shall  have  been  previously  ascertained  by  law,  and  to 
be  informed  of  the  nature  and  cause  of  the  accusation  ;  to  be 
confronted  with  the  witnesses  against  him ;  to  have  compulsory 
process  for  obtaining  witnesses  in  his  favor,  and  to  have  the 
Assistance  of  Counsel  for  his  defence. 

ARTICLE  VII. 
In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved, 
and  no  fact  tried  by  a  jury  shall  be  otherwise  re-examined  in  any 
Court  of  the  United  States,  than  according  to  the  rules  of  the 
common  law. 

ARTICLE   VIII. 
Excessive  bail  shall  not  be  required,  nor  excessive  fines  im- 
p>osed,  nor  cruel  and  unusual  punishments  inflicted. 

ARTICLE  IX. 
The  enumeration  in  the  Constitution,  of  certain  rights,  shall 
not  be  construed  to  deny  or  disparage  others  retained  by  the 
people. 

ARTICLE   X. 
The  powers  not  delegated  to  the  United  States  by  the  Consti- 
tution, nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States 
respectively,  or  to  the  people. 

ARTICLE   XL 
The  Judicial  power  of  the  United  States  shall  not  be  construed 
to  extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted 
against  one  of  the  United  States  by  Citizens  of  another  State,  or 
by  Citizens  or  Subjects  of  any  Foreign  State. 

390 


Appendix 

ARTICLE  XII. 

The  Electors  shall  meet  in  their  respective  states,  and  vote  by 
ballot  for  President  and  Vice-President,  one  of  whom,  at  least, 
shall  not  be  an  inhabitant  of  the  same  State  with  themselves  ; 
they  shall  name  in  their  ballots  the  person  voted  for  as  President, 
and  in  distinct  ballots  the  person  voted  for  as  Vice-President,  and 
they  shall  make  distinct  lists  of  all  persons  voted  for  as  President, 
and  of  all  persons  voted  for  as  Vice-President,  and  of  the  number 
of  votes  for  each,  which  lists  they  shall  sign  and  certify,  and 
transmit  sealed  to  the  seat  of  the  Government  of  the  United  States, 
directed  to  the  President  of  the  Senate ; — The  President  of  the 
Senate  shall,  in  the  presence  of  the  Senate  and  House  of  Repre- 
sentatives, open  all  the  certificates  and  the  votes  shall  then  be 
counted ; — ^The  person  having  the  greatest  number  of  votes  for 
President,  shall  be  the  President,  if  such  number  be  a  majority 
of  the  whole  number  of  Electors  appointed ;  and  if  no  person 
have  such  majority,  then  from  the  persons  having  the  highest 
numbers  not  exceeding  three  on  the  list  of  those  voted  for  as 
President,  the  House  of  Representatives  shall  choose  immediately, 
by  ballot,  the  President.  But  in  choosing  the  President,  the  votes 
shall  be  taken  by  states,  the  representation  from  each  state  having 
one  vote  ;  a  quorum  for  this  purpose  shall  consist  of  a  member 
or  members  from  two-thirds  of  the  states,  and  a  majority  of  all 
the  states  shall  be  necessary  to  a  choice.  And  if  the  House  of 
Representatives  shall  not  choose  a  President  whenever  the  right 
of  choice  shall  devolve  upon  them,  before  the  fourth  day  of  March 
next  following,  then  the  Vice-President  shall  act  as  President,  as 
in  the  case  of  the  death  or  other  constitutional  disability  of  the 
President.  The  person  having  the  greatest  number  of  votes  as 
Vice-President,  shall  be  the  Vice-President,  if  such  number  be  a 
majority  of  the  whole  number  of  Electors  appointed,  and  if  no 
person  have  a  majority,  then  from  the  two  highest  numbers  on 
the  list,  the  Senate  shall  choose  the  Vice-President ;  a  quorum 
for  the  purpose  shall  consist  of  two-thirds  of  the  whole  number 
of  Senators,  and  a  majority  of  the  whole  number  shall  be  neces- 
sary to  a  choice.     But  no  person  constitutionally  ineligible  to  the 

39 « 


Evolution  of  the  Constitution 

office  of  President  shall  be  eligible  to  that  of  Vice-President  of 
the  United  States. 

ARTICLE   XIII. 

Section  i.  Neither  slavery  nor  involuntary  servitude,  except 
as  a  punishment  for  crime  whereof  the  party  shall  have  been  duly 
convicted,  shall  exist  within  the  United  States,  or  any  place  sub- 
ject to  their  jurisdiction. 

Section  2.  Congress  shall  have  power  to  enforce  this  article 
by  appropriatfe  legislation. 

ARTICLE   XIV. 

Section  i.  All  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside.  No  State  shall  make 
or  enforce  any  law  which  shall  abridge  the  privileges  or  immuni- 
ties of  citizens  of  the  United  States  ;  nor  shall  any  State  deprive 
any  person  of  life,  liberty,  or  property,  without  due  process  of 
law ;  nor  deny  to  any  person  within  its  jurisdiction  the  equal  pro- 
tection of  the  laws. 

Section  2.  Representatives  shall  be  apportioned  among  the 
several  States  according  to  their  respective  numbers,  counting 
the  whole  number  of  persons  in  each  State,  excluding  Indians  not 
taxed.  But  when  the  right  to  vote  at  any  election  for  the  choice 
of  electors  for  President  and  Vice-President  of  the  United  States, 
Representatives  in  Congress,  the  Executive  and  Judicial  officers 
of  a  State,  or  the  members  of  the  Legislature  thereof,  is  denied 
to  any  of  the  male  inhabitants  of  such  State,  being  twenty-one 
years  of  age,  and  citizens  of  the  United  States,  or  in  any  way 
abridged,  except  for  participation  in  rebellion,  or  other  crime,  the 
basis  of  representation  therein  shall  be  reduced  in  the  proportion 
which  the  number  of  such  male  citizens  shall  bear  to  the  whole 
number  of  male  citizens  twenty-one  years  of  age  in  such  State. 

Section  3,  No  person  shall  be  a  Senator  or  Representative  in 
Congress,  or  elector  of  President  and  Vice-President,  or  hold  any 
office,  civil  or  military,  under  the  United  States,  or  under  any 
State,  who,  having  previously  taken  an  oath,  as  a  member  of 
Congress,  or  as  an  officer  of  the  United  States,  or  as  a  member 

392 


Appendix 

of  any  State  Legislature,  or  as  an  executive  or  judicial  officer  of 
any  State,  to  support  the  Constitution  of  the  United  States,  shall 
have  engaged  in  insurrection  or  rebellion  against  the  same,  or 
given  aid  or  comfort  to  the  enemies  thereof.  But  Congress  may 
by  a  vote  of  two-thirds  of  each  House,  remove  such  disability. 

Section  4.  The  vaUdity  of  the  public  debt  of  the  United  States, 
authorized  by  law,  including  debts  incurred  for  payment  of  pen- 
sions and  bounties  for  services  in  suppressing  insurrection  or  re- 
bellion, shall  not  be  questioned.  But  neither  the  United  States 
nor  any  State  shall  assume  or  pay  any  debt  or  obligation  incurred 
in  aid  of  insurrection  or  rebellion  against  the  United  States,  or 
any  claim  for  the  loss  or  emancipation  of  any  slave  ;  but  all  such 
debts,  obligations  and  claims  shall  be  held  illegal  and  void. 

Section  5.  The  Congress  shall  have  power  to  enforce,  by  ap- 
propriate legislation,  the  provisions  of  this  article.     " 

ARTICLE  XV. 

Section  i  .  The  right  of  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  by  the  United  States  or  by  any 
State  on  account  of  race,  color,  or  previous  condition  of  servitude. 

Section  2.  The  Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation. 


393 


Index 


Absolutism,  105. 
Adjournment,  65,  98,  99,  135. 
Ambassador,  96,  295. 
Amendment,  61,  78,  176,  265,  311. 
Andros,  Sir  Edmund,  222. 
Appointing  power,  64,  78,  98,  171. 
Apportionment  of  Congress,  lOO. 
Arms,  right  to  bear,  208. 
Army,  96,  299. 
Arrest,  privilege  from,  132. 
Attainder  of  treason,  210. 

Bail,  205. 

Bankruptcy,  311. 

Bellomont,  Earl  of,  228. 

Bill  of  rights,  54. 

Blackstone,  Commentaries  of,  94. 

Borrow  money,  power  to,  297. 

Boundary  disputes,  241. 

Bradford,  330. 

Bryce,  12,  94. 

Campbell,  on  origin  of  institutions, 

»3,  19,  3»5- 
Captures,  294. 
Carolinas,  41,  51. 
Carson,  Hampton  L.,  217. 
Censors,  council  of,  80. 
Census,  267,  273, 
College,  the,  of  Philadelphia,  262. 
Columbia,  District  of,  310. 
Commander-in-chief,  158,  226. 
Commerce,  regulation  of,  99,  225, 

293.  3"- 


Confederation,  Articles  of,  242. 

Congress,  control  of,  by  president, 
99  ;  general  powers  of,  275  ;  pre- 
siding officer  of,  276 ;  restric- 
tions on,  277. 

Connecticut,  Fundamental  Orders 
of,  41  ;  charter  of,  24,  44 ;  Dutch 
influence  in,  367. 

Constitution,  sources  of  the,  19 ; 
great  age  of,  22. 

Constitutions,  native,  23 ;  of  1776, 

23.  25.  70. 
Continental  Congress,  238. 
Contracts,  obligation  of,  262. 
Controversies  between  states,  305. 
Convention,  the,  of  1787,  255. 
Corporations,  use  of,  in  America, 

119. 
Council    for    P'oreign    Plantations, 

222. 
Council,    the,    for   New   England, 

339- 
County,  the,  in  Virginia,  337. 
Coxe,  Brinton,  185. 

Debate,  freedom  of,  130. 
Debts  under  Confederation,  310. 
Deeds,  recording  of,  319,  368. 
Departments,  confusion  of,  34,  38, 

64 ;  separate,  109. 
Domestic  violence  in  a  state,  310. 
Drayton,  William  Henry,  250. 
Du  Chaillu,  14. 
Dudley,  Governor,  346. 


395 


Index 


Duke  of  York,  grants  to,  41. 

Dutch,  in  New  York,  352,  354, 
359;  in  New  England,  353; 
their  ideas  of  religious  liberty, 
357 ;  in  Pennsylvania,  359,  365. 

East  India  Company,  93, 

East  Jersey,    Concessions  of,    48, 

50. 
Elections,  manner  of  holding,  311. 
Electors  of  the  president,  83,  153. 
Embargoes,  78. 
Eminent  domain,  214. 
English  sources  of  the  constitution, 

90. 
Excessive  bail  and  fines,  205. 
Execution  of  the  laws,  60,  98,  150, 

156,  158. 
Executive,  80,  94,  242,  246,  248. 
Expenditure  of  public  money,  314. 
Export  duties,  311. 
Ex  post  facto  laws,  82,  210. 

Federal  power,  249,  251. 
Federalism,  215,  217,  219. 
Fines,  205. 

Foster,  on  the  Constitution,  13, 
Franklin,   Benjamin,  his  plans  of 

union,  231,  238,  240. 
Free  schools,  324. 
Freedom  of  debate,  130. 
Freedom  of  the  press,  206. 
Furly,  Benjamin,  361. 

Galloway,  Joseph,  238. 
Georgia,  charter  of,  68,  70. 
German   origin   of   New   England 

towns,  13. 
Gladstone,  II. 
Grocers'  Company,  28. 


Habeas  corpus,  212. 

Hamilton,  his  plan  of  union,  261. 

House  of  representatives,  117. 

Hue  and  cry,  220. 

Hutchinson,  his  plan  of  union,  235. 

Impeachment,  59,  78,  86,  147. 
Inconsistent  offices,  103. 
Indians,  origin  of,  14. 
Indians,  treatment  of,  by  the  Dutch, 

358. 
Intercourse   among   the    colonies, 

220,  221,  225,  245,  290. 
Inventions,  188. 

Jeopardy,  twice  in,  205. 
Johnson,  Dr.  Samuel,  his  plan  of 

union,  236. 
Judiciary,  the,  174,  295. 
Jury,  trial  by,  201. 

Keith,  Sir  William,  231. 
Kid,  Social  Evolution,  22. 

Liberty,  religious,  190. 
Locke,  John,  51. 
Lords  of  Trade,  222. 

Madoc,  the  Welsh  prince,  14. 

Marque,  letters  of,  96,  309. 

Martial  law,  212. 

Maryland,  charter  of^  40 ;  constitu- 
tion of,  81. 

Massachusetts,  constitutional  expe- 
rience of,  20,  25 ;  first  charter 
of,  37 ;  second  charter  of,  62  ; 
rejected  constitution  of,  86  ;  sec- 
ond constitution  of,  88. 

Mayflower,  agreement  on  board  of, 
35. 


396 


Index 


Measures,  standard  of,  298. 
Meigs,  William  M.,  185. 
Mennonites,  the,  364. 
Merchant  adventurers,  29. 
Message  of  president,  85,  97,  170. 
Militia,  208. 
Money,  regulation  of  the  value  of, 

237,  298. 
Money,   when   to   be   issued  from 

treasury,  307. 
Money-bills,  133. 
Montesquieu,  Spirit  of  Laws,  1 14. 

Name  of  United  States,  274. 

Nationality,  261,  266,  309. 

Naturalization,  189. 

Navy,  304. 

New  England,  charter  of,  35. 

New  England  towns,  318,  320, 
325,  336,  340,  342. 

New  England  union,  219. 

New  Hampshire,  grants  of,  41  j 
commission  for,  55  ;  first  consti- 
tution of,  71 ;  rejected  constitu- 
tion of,  87  ;  second  constitution 
of,  88. 

New  Jersey,  constitution  of,  77. 

New  states,  311. 

New  York,  constitution  of,  83. 

Nobility,  titles  of,  211. 

Non-importation  agreements,  238. 

Obligation  of  contracts,  262. 

Pardoning  power,  96,  167. 

Patents,  i88. 

Paterson's  plan  of  union,  261. 

Patrick,  David,  347. 

Peace,  power  to  declare,  266. 

Penn,  William,  57,  223,  360. 


Pennsylvania,  constitutional  expe- 
rience of,  21  ;  charter  of,  41  ; 
first  frame  of,  56,  65  ;  charter  of 
privileges  of,  65  ;  constitution  of^ 

79. 
Peters,  Hugh,  346. 
Peters,  Richard,  235. 
Petition,  right  to,  207. 
Pinckney's  plan  of  union,  258. 
Post-oflSce,  307. 
Presents,  2H. 

Presiding  officer  of  senate,  129. 
Primogeniture,  324,  369. 
Prisoner's  privilege  of  counsel  and 

witnesses,  203. 
Privilege  from  arrest,  132. 
Privy  council,  76,  222. 
Procedure  of  Congress,  143. 
Profit,  offices  of,  21 1. 
Punishments,  205. 
Puritans,  Dutch  influence  among, 

343- 

Quartering  of  soldiers,  209. 
Quorum  of  Congress,  102. 

Raleigh,    Sir   Walter,  his   charter, 

19,  26,  105. 
Randolph's  plan,  255. 
Religion,    freedom    of,    190,    324, 

357,  362. 
Representation,     234,     245,     267, 

371- 
Representatives,  house  of^  117. 
Republican  government  in  a  state, 

3"- 

Rhode  Island,  charter  of,  24,  47  ; 
patent  for,  44  ;  not  in  New  Eng- 
land union,  221. 

Rights,  bill  of;  54,  62,  67, 81. 


397 


Index 


Salaries,  313. 
Schools,  free,  370. 
Seizures  and  searches,  1 99, 
Senate,  18,  63,  72,  73,  75,  lOO,  123, 

129. 
Separate  departments,  109. 
Servants,  escape  of^  220. 
Slavery,  311. 

Soldiers,  quartering  of,  209. 
South  Carolina,  constitution  of,  73  ; 

second  constitution  of,  87. 
Sovereignty  of  states,  284. 
Speakership  of  Congress,  143. 
Spencer,  Herbert,  314. 
States,  controversies  between,  305  ; 

restrictions  on,  279. 
Stevens,  on  the  constitution,  13. 
Stone,  Frederick  D.,  217. 
Subject,  equivalent  to  citizen,  205. 

Taxation,  232,  287. 

Taylor  on  the  Constitution,  13. 

Territory,  311. 

Thayer,  on  Unconstitutional  Law, 

185. 
Towns  of  New  England,  13,  318, 

320,  325,  336,  340,  342. 
Treason,  210,  250,  308. 
Treaty,  power  to  make  a,  306. 
Trial  by  jury,  201, 
Twice  in  jeopardy,  205. 

Unconstitutional  laws,  prevention 

of,  182. 
Union,  plans  of,  218,  267  ;  plan  of 


Charles  II.,  222 ;  plan  of  James 
II.,  222  ;  plan  of,  in  1690,  223 , 
plan  of  William  Penn,  223  ;  plan 
of  Lords  of  Trade,  227  ;  D'Ave- 
nant's  plan,  228  ;  a  Virginian's 
plan,  228 ;  Livingston's  plan, 
229 ;  Earl  of  Stair's  plan,  229 ; 
Coxe's  plan,  230 ;  Franklin's 
plan,  in  1754,  231  ;  Peters's  plan, 
235  ;  Hutchinson's  plan,  235  ; 
Johnson's  plan,  236  ;  Galloway's 
plan,  238 ;  Franklin's  plan,  in 
1775.  238,  240. 

Vacancies  in  office,  312. 

Vermont,  constitution  of,  86 ;  sec- 
ond constitution  of,  89. 

Veto  power,  17,  84,  95,  1 61,  234. 

Virginia,  constitutional  experience 
of,  21  ;  first  charter  of,  27,  29 ; 
second  charter  of,  30  ;  third  char- 
ter of,  32  ;  house  of  burgesses  of, 
33 ;  charter  dissolved,  34 ;  con- 
stitution of,  75. 

Von  Hoist,  314. 

War,  power  to  declare,    96,   140, 

226. 
Webster,  Noah,  252. 
Weights,  standard  of,  298. 
West  India  Company,  356. 
West  Jersey,   Concessions  of,  50, 

S3- 
Winslow,  Edward,  351. 
Winthrop,  Governor,  333,  336. 


THE  END. 


EUOTROTVPEO  AND   PRINTED  BV  J.    B,    LiPPINOOTT  COMPANY,   PHILADELPHIA,    U.8.A. 


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